TWO HUNDRED
AND TWELFTH DAY
Tuesday, 27 August 1946

Morning Session

DR. HANS LATERNSER (Counsel for the General Staff and OKW): Mr. President, I should like to take 2 minutes of the Tribunal's time. Yesterday after the conclusion of the interrogation of the witness Schreiber I received a written report to the effect that, to begin with, research work, as far as bacteriology was concerned, was expressly ordered to be limited to defense, and secondly, that a suggestion of the Army Medical Inspectorate in the autumn of 1943, that all means for an attack should be exhausted, was strongly objected to by the OKW and particularly by Field Marshal Keitel, who pointed out that this was prohibited, and would in no way be considered.

This material I gathered from a letter which was put on my desk yesterday, a letter which I read yesterday evening for the first time.

These two points which I have just quoted as proof can be testified to by Colonel Buerker of the General Staff, who is at present interned in the camp at Dachau. I propose that we interrogate this witness and confront him with the witness Schreiber.

I assume that this officer is the same colonel who presided over the secret session mentioned by the witness Schreiber. The witness is at Dachau. He could appear before this court tomorrow. My interrogation would take, at the most, 20 minutes. I consider the bringing of this proof to be absolutely essential in the interests of truth. I have submitted my application to the Tribunal in writing.

THE PRESIDENT (Lord Justice Sir Geoffrey Lawrence): The Tribunal will consider your application. Perhaps the Tribunal ought to hear if the Prosecution have anything to say in answer to the application made by Dr. Laternser. The Tribunal would also like to see the report and the letter to which Dr. Laternser referred.

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom): If My Lord will just allow me a moment until I see Colonel Smirnov.

1

27 Aug. 46

THE PRESIDENT: Certainly.

DR. LATERNSER: Mr. President, the letter is from General Warlimont, who is at present in Nuremberg. He wrote this letter on 23 August here in Nuremberg and I received it yesterday. I found it on my table after I came down from the session. I put it in my briefcase without reading it and noted its contents when I arrived home yesterday.

Perhaps I might call the attention of the High Tribunal to the fact that in this letter we are told that after the publication of these bacteriological projects over the radio, this Colonel Buerker whom I have just asked as a witness, came to Warlimont, who was still at Dachau at the time, and told him those facts which I have presented now.

Meanwhile General Warlimont was transferred to Nuremberg a few days ago. These are the details connected with this point.

THE PRESIDENT: Whose report is it?

DR. LATERNSER: I was referring, Mr. President, to this letter in which ... by General Warlimont, in which the General informs me of the statements which Colonel Buerker made face to face to him a few days ago in the camp at Dachau. These statements are bracketed and I shall be very happy to submit this letter to the High Tribunal.

SIR DAVID MAXWELL-FYFE: There are two points that occur to me.

First, if Dr. Laternser would let us see the letter, it might be possible to shorten the matter in that way, to make some admission as to the statement in the letter. Otherwise, it might be convenient to see an affidavit from the officer and know what he was going to say before we occupy the time by having him examined. If Dr. Laternser would agree to the Prosecution's having the letter translated and examined, we should be able to make a communication to him and, if necessary, to the Tribunal, in the course of the day.

THE PRESIDENT: That seems a convenient course, particularly in view of the fact that the Tribunal expect to finish the entire hearing of the case this week, certainly by Saturday evening, and it will be, therefore, very difficult to get an affidavit by this Colonel Buerker before that time. Therefore, if the Prosecution are able to agree that Colonel Buerker would give that evidence, that probably would be the best way of dealing with the matter.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases; then if Dr. Laternser would allow us to have the letter, we will have it translated and looked into in the course of the day.

THE PRESIDENT: Yes.

2

27 Aug. 46

DR. LATERNSER: Mr. President, if the witness can be called here through a request by telephone, then I can take his affidavit here or interrogate him briefly. That would be the quickest way. If I have to write to the camp first in order to get the affidavit that way, that would take more time. I assume that the telephone connection is such that we can still call Dachau today to have the witness brought here, and then we can discuss how this evidence will be presented.

THE PRESIDENT: We will see first what the Prosecution say after they have seen the letter.

COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): My Lord, I would like to report that I tried to arrange for the possibility of confronting the witness of Dr. Laternser with Schreiber, but this possibility, unfortunately, has been excluded because Schreiber has been sent back to the prisoner-of-war camp. Thus it is impossible to confront the two witnesses because Dr. Laternser presented his request too late. The Soviet Prosecution does not think that it would be advisable to call the witness requested by Dr. Laternser, especially since the witness requested by Dr. Laternser does not, as far as I know, refute the fact itself that there was a secret session of the OKW, which, in my opinion, is the most important fact in that case. That is all that I wanted to report to the Tribunal on the part of the Soviet Prosecution.

THE PRESIDENT: The Tribunal will await the communication. from the Prosecution and they will consider the matter.

Dr. Gawlik.

DR. HANS GAWLIK (Counsel for the SD): May it please the High Tribunal: Yesterday I paused at the question whether it would be possible at all to determine those prerequisites which are necessary in order to declare an organization criminal. I shall continue.

My statements made hitherto should lead to the conclusion that the evidence of guilt cannot be summarily determined by drawing conclusions from the number of crimes and the type of crime committed, from the knowledge of all the members of these deeds, and from their consciousness of their illegality. It is, on the contrary, necessary that proof of the knowledge and consciousness of illegality should only be considered in special proceedings in the case of each individual member of the organizations; since everything depends on the circumstances, the individual members must be given the opportunity to reply to them. Even if the members might have had knowledge of the real facts of individual criminal acts, that does not prove that they also knew that their organizations were involved therein.

3

27 Aug. 46

Now I shall turn to the next section.

A condemnation of the organizations is furthermore in opposition with the principle of penal law: nulla poena sine lege. This principle has already been treated in detail by the defense counsel of the principal defendants. I shall not repeat these statements, but only point out briefly the following points of view.

In his Opening Statement, on 20 November 1945, the American Chief Prosecutor said that the defendants could not invoke this principle because they had themselves transgressed it. This argument in no way concerns the members of the organizations, because the members had no influence on the legislation but were themselves objects of the legislation.

The Prosecutor of the Union of Socialist Soviet Republics pointed out, in the discussion of this principle in his final speech on 29 July 1946, that the Charter of the International Military Tribunal was an inviolable law and absolutely had to be carried out.

The Charter is, however, in no way violated and will also be carried out if the Tribunal considers the principle nulla poena sine lege and does not condemn the organization, for Article 9 of the Charter is merely an optional regulation. The Chief Prosecutor of the Union of Socialist Soviet Republics further asserted that the Charter represents principles which are contained in a succession of international agreements and in the legislation of all civilized peoples. International agreements and laws of civilized peoples only show that punishable offenses must be judged in individual proceedings. The principle of collective judgment of groups of persons was up to now unknown in international law. On the contrary it is denied, as I said before, by the theory of international law.

Until the first World War it was the custom to include in peace treaties amnesty clauses for war crimes committed. After the first World War the general principle developed that individual members of fighting forces might personally be made responsible after the war for violations of the laws of war. I refer to Fenwick in International Law, 1924, Page 578.

The declaration of the chiefs of state of the United States of America, Great Britain, and the Union of Socialist Soviet Republics of 2 November 1943, mentioned by the Prosecutor of the Socialist Soviet Republics, orders expressly that individuals shall be made responsible. This declaration contains no statement to the effect that the collective condemnation of groups of persons is permissible.

Article 9 of the Charter is therefore not the expression of an internationally recognized legal maxim. This clause on the contrary creates a new law and cannot be made applicable with retroactive force, for instance for the time since 1921, as proposed by the Chief

4

27 Aug. 46

Prosecutor of the United States, or even for the time from 1933 on, as proposed by the Prosecutor of the Union of the Socialist Soviet Republics in his final speech on 29 July 1946.

The condemnation of the organizations is therefore in opposition to the principle nulla poena sine lege.

In the second section of Part 1, I come to the discussion of the questions of procedure resulting from Article 9 of the Charter. In legal procedure, according to Article 9 of the Charter, an organization or group may be said to be criminal (a) In the trial against a member of such organization or group, and (b) in connection with any action by reason of which the accused is condemned.

Both these hypotheses must be realized. Of the principal defendants, only the Defendant Kaltenbrunner, Chief of the Security Police and SD, is involved as member of the SD.

It can be gathered from the words, "in connection with any action by reason of which the accused is sentenced," that every action of the member of the organization or group is sufficient to declare the organization or group as criminal. This, however, cannot be the meaning and purpose of this definition, as I should like to illustrate by the law of the United States of 28 June 1940, already quoted.

When persons belonging to one of the associations mentioned in the act of 28 June 1940 are arraigned before a tribunal in several different proceedings, an admittedly extensive examination of evidence, though doubtful in its results, must be effected in each proceeding to determine whether the association to which the person belongs fulfills the primary conditions contained in the above legal stipulations. Then it could happen that in one trial it is established that the organization had pursued the purpose named in the law of 28 June 1940, while in other trials the result of the testimony is not considered sufficient.

In order to avoid these difficulties it could be decreed by a provision of the law that the trial be held against one or several members of the organization, while the other members who have not yet been accused are given the possibility of a legal hearing, and if a member is condemned on account of his membership in an organization within the meaning of the decree of 28 June 1940, the Tribunal makes the declaration, to take effect for all members of the organization, that the organization fulfills the purpose mentioned in the decree of 28 June 1940.

Such provisions would achieve the following: (1) the testimony on the aims, tasks, and activities of the organization would be taken only once, and (2) contradictory decisions on the objective tasks, aims, and activities of the organization would be avoided.

5

27 Aug. 46

This purpose is apparently also the intention of Article 9 of the Charter. The situation is to be avoided whereby the military tribunals in the individual occupation zones, in the proceedings against the members of the accused organizations, would have to examine the question of the character of the organization each time by lengthy examination of evidence and perhaps come to contradictory decisions. To be sure, it would ...

THE PRESIDENT: Dr. Gawlik, are you arguing that if any individual were tried under this act of June 1940, that the declaration of this Court under Article 9 would have any effect in the Trial under that act of June 1940? Is that your argument?

DR. GAWLIK: No, Your Lordship. I wanted to explain the stipulation laid down in Article 9 in line with the law of June 1940. The law of June 1940 is something quite different and has no connection with Article 9. 1 wanted to explain in connection with the law of June 1940, which was mentioned by the American Chief Prosecutor, what importance a stipulation would have such as is set down in Article 9.

THE PRESIDENT: What importance are you suggesting it would have?

DR. GAWLIK: Article 9, as I shall set forth, has the following significance:

One member must be accused because of his membership in an organization, an organization which pursues crimes according to Article 6 of this Charter. Then, in this trial against one member, all the facts must be cited against this member because of his membership in the organization, and then the facts that have been ascertained, about the aims, tasks, and activities of the organization, if a conviction is obtained, can be used in the trials against the other members; but only the objective facts, not the guilt, for guilt is an individual matter.

Your Lordship, may I cite an explanatory example. Here one member of the SD would have to be selected and this member would have to be accused, as I shall set forth, because the SD was part of an organization which permitted crimes against the peace, the laws of war, and against humanity. Now, if this member is punished because of his membership in an organization of that nature, you are objectively determining that the SD is an organization of that kind, therefore the objective findings concerning the aims, tasks, and activities of the SD can be used in the proceedings against the other members.

THE PRESIDENT: Well, I think I follow that argument, based upon the first paragraph of Article 9, is that right? It is based upon your construction or interpretation of the first paragraph of Article 9?

6

27 Aug. 46

DR. GAWLIK: Yes.

THE PRESIDENT: Are you saying that a decision of this Tribunal upon that would have any importance of effect upon a trial under the act of 1940?

DR. GAWLIK: No, that is only an example.

MR. FRANCIS BIDDLE (Member of the Tribunal for the United States): The law of 1940 is the Sedition Law, is it not? That is the Sedition Law of 1940?

DR. GAWLIK: Yes.

MR. BIDDLE: You say the Prosecution in their argument depended on that act to show that this type of group condemnation was used in other countries -- they made that analogy?

DR. GAWLIK: Yes, I know...

MR. BIDDLE: Yes, you say that is not a true analogy.

DR. GAWLIK: Yes.

MR. BIDDLE: And the reason you say that is that if one individual were tried under the act of 1940 -- do you follow?

DR. GAWLIK: Yes.

MR. BIDDLE: First it would be necessary to show that he belonged to an organization of which the purpose was to overthrow the Government by force or violence, right?

DR. GAWLIK: Yes.

MR. BIDDLE: Now, the court then would have to decide first the purposes of the organization, right?

DR. GAWLIK: Yes.

MR. BIDDLE: Now, you say also that, if a second individual were, at a later time, tried under that act, the Government would again have to prove ...

DR. GAWLIK: Yes.

MR. BIDDLE: ... that the purpose of the organization was to overthrow the Government by force or violence, right?

DR. GAWLIK: Yes.

MR. BIDDLE: And therefore, that the analogy is not true because the finding as to the organization in the first trial against the first individual would have no effect...

DR. GAWLIK: Yes.

MR. BIDDLE: ... on the second trial against the second individual, and that that principle is inherent in all Anglo-Saxon law because the finding of a fact against one individual cannot affect the trial against the second individual, is that your argument?

7

27 Aug. 46

DR. GAWLIK: Yes. Certainly it would be sufficient for this purpose if the legal effect went only as far as the objective determination of the tasks, aims, and activities of the organization, and the determination of guilt were left to the subsequent proceedings.

With regard to Law Number 10, as was pointed out already, the condemnation of the organizations according to Article 9 of the Charter contains not only the objective statement of the aims, tasks, and activities of the organizations, but beyond this purpose the confirmation of the guilt of the members. Consequently, Article 9 of the Charter, besides the legal material confirmation of objective and subjective factual evidence, also has a legal criminal meaning.

This juridical aim, which is evidently pursued by Article 9 of the Charter, can, however, only be attained if this decision is so interpreted that the member is sentenced on account of membership in an organization whose aims or expedients are punishable according to Article 6 of the Charter, and not on account of any action. Any other interpretation would have no meaning and no purpose.

Only a conviction of the Defendant Kaltenbrunner on account of membership in such an organization could, therefore, according to Article 9 of the Charter, justify the condemnation of the SD.

In consideration of these statements the formal hypotheses for the application of Article 9 of the Charter do not appear appropriate to me. It would be necessary for the Defendant Kaltenbrunner to have been charged on account of his membership in the SD as a criminal organization within the meaning of the Charter, and for the character of the SD to have been examined in this proceeding against the Defendant Kaltenbrunner. Only then would there be a case at hand -- as the Chief Prosecutor for the United States has stated -- on the basis of which the criminality of the SD could be examined. Such a charge has, however, not been made against the Defendant Kaltenbrunner. The Defendant Kaltenbrunner has not been accused of belonging to the SD as a criminal organization, but is to be sentenced for other punishable offenses.

Therefore, taking the statement of the American Prosecutor as a basis, it must be considered as inadmissible that for the proof of the criminality of the SD evidence has been produced which has no connection with the criminal actions with which the Defendant Kaltenbrunner has been charged.

Finally, it will have to be examined what connection exists between the period during which the accused member belonged to the organization and the period for which the organization is to be declared criminal. This purely legal question is completely different from the question of the period during which an organization was criminally active. Here we are only concerned with this question:

8

27 Aug. 46

can, in the proceedings against a defendant, the organization of which he was a member be declared criminal also for the period during which he did not belong to the organization?

According to the statements made by the American Prosecutor, the criminality of the organization is to be examined only on the strength of the defendant's action. Any action of the defendant limits the examination as to whether the organization can be declared criminal also in regard to time. The evidence in the proceedings against an accused member can only justify any decision regarding the organization for the period during which the defendant belonged to the organization.

This limit in time is justified for another reason: Whoever is to be sentenced has the right to be heard. This right to be heard is not met by the making of statements before the court, but includes the right to participate in the whole proceedings. According to Article 9 of the Charter, this right to participate in the entire proceedings is obviously not to be annulled, but only restricted to a single person of the organization mentioned, in order to save time, on the principle that the depositions of further members as to the aims and tasks and activities of the organization would be cumulative. A member who did not belong to the organization during the whole period for which the organization is to be declared criminal, can define his attitude toward the question of the aims, tasks, and activities of the organization only for the duration of his membership. According to the principle of legal hearing it is, therefore, necessary that such a member should participate in the proceedings as a defendant, who was a member of the organization during the whole period for which the organization is to be declared criminal.

For these judicial reasons the organization can equally be declared criminal only for the period during which the defendant was a member of it. Should an organization be declared criminal for the entire duration of its existence, then a member must be indicted who belonged to it during the whole period. For judicial reasons the SD, therefore, could be declared criminal only for the period during which the Defendant Kaltenbrunner was Chief of the Sipo and the SD, that is, since January 1943. The crimes with which Aemter III and VI are charged must, therefore, have been committed during this period.

I now come to the real evaluation of the facts based upon the results of the evidence. This is my second main part, and first of all I shall deal with general statements.

The Prosecution has submitted a large number of documents in which the SD is mentioned, thus wishing to prove that the Aemter III and VI were those responsible for them. However, the Prosecution itself has said that in common usage, and even in orders and decrees,

9

27 Aug. 46

"SD" was used as an abbreviation for "Sipo and SD." I refer to the trial brief against the Gestapo and SD, Page 19 of the German text, and to the session of 3 January 1946. Even according to the Prosecution, a document mentioning the SD is no proof that this deed must have been committed by members of Aemter III and VI. These may just as well be deeds of the Sipo. That has been proved by the evidence.

The witness Von Manstein, one of the highest military leaders of the former German Wehrmacht, was heard before the Tribunal. This witness spoke repeatedly of the SD in his hearings before the Tribunal and the Commission. When I asked the witness what he understood by SD, he declared that he was not quite certain. My further question whether he believed this to mean Aemter III and VI he answered in the negative (Session of 10 August 1946).

The shooting of a Commando in the north of Norway was mentioned in the examination of the Defendant Jodl on the witness stand. The Defendant Jodl was told that the prisoners had been shot by the SD. Thereupon the Defendant Jodl declared, and I refer to the record and quote (Session of 6 June): "Not by the SD; that is not correct, but by the Security Police."

I furthermore draw your attention to the affidavit of the Defendant Keitel -- SD-52 -- who declared under oath that he only realized during the Trial at Nuremberg that the opinion frequently prevailing also in military circles concerning the tasks and competence of the SD as an executive police organ was not correct. Therefore in military language and decrees the SD was often mentioned when the competent police organ with executive power was meant. Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which had led to the wrong interpretation of the abbreviation "SD."

In this connection I also refer to the affidavit of the former Chief of the General Staff of the Luftwaffe, Koller (Document Number Jodl-58, Pages 179 and following, in Document Book Jodl). In this affidavit Koller reports upon a situation conference with Hitler. At this conference Hitler gave the order to turn over all bomber crews of the various Allied forces to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation: "The Fuehrer's conceptions are quite erroneous. The tasks, too, of the SD are constantly being misinterpreted. Such things are no concern of the SD."

The French Prosecution has submitted a great number of documents in which the SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission.

10

27 Aug. 46

Knochen was the Commander of the Security Police and the SD in France. In connection with these documents he said that there had been a confusion in terminology, and that SD should be interpreted as "Field Police." To my question: "What does turning over to the SD mean?" the witness Knochen answered, and I quote: "that means transfer to the Executive Section IV of the Security Police."

I showed the witness Dr. Hoffmann Document 526-PS before the Commission. Hoffmann was an official of the Security Police and never belonged to the SD. Document 526-PS concerns the carrying out of a Commando order in a Norwegian fjord. This report states: "Fuehrer Order carried out by SD." To my question to the witness Hoffmann, what was to be understood by SD, he answered literally: "Since this seems to be an executive measure, SD must here be interpreted as Security Police; the Wehrmacht often mixed up the two ideas."

The Prosecution has furthermore submitted Document Number 1475-PS. This is a report of the commander of the prison at Minsk, dated 31 May 1943, in which he reports that Jews had been brought into the prison by the SD, through Hauptscharfuehrer Ruebe, and that the gold bridges, fillings, and crowns had been removed from their teeth. In this connection I have submitted Affidavit Number SD-69 of Gerty Breiter, a stenographer employed with the Commander of the Security Police and the SD in Minsk. Gerty Breiter states that Ruebe was an official of the Gestapo, and that the SD in Minsk had nothing to do with Jewish affairs. The sole activity of the SD in Minsk was to make reports upon the general attitude and opinions of the public. There were no SD prisons in Minsk.

This confusion in terminology is apparently due to the fact that the members of the SS special formation "SD" which, as I said in the introduction, was something entirely different from the SD Intelligence Service, wore the SS uniform with the SD insignia.

In the territories occupied by Germany, all members of the RSHA, including all members of the Stapo and Kripo, even those who were not members of the SS or SS candidates, wore the SS uniform with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police were considered to be SD measures. I refer in particular to the Commission record and to the Court record (Session of 1 August 1946).

THE PRESIDENT: Did you say then that all members of the SS, including the Kripo and the Sipo, when they were working in the East were in the uniform of the SS with an SD badge on them?

DR. GAWLIK: Yes. The witness has given this in evidence, Your Lordship.

THE PRESIDENT: Go on.

11

27 Aug. 46

DR. GAWLIK: In this connection I would point out that about 90 percent of all members of Aemter III and VI were unpaid, and only a small part of them belonged to the SS or were SS candidates (Affidavit Number SD-32). During the war a large number of the members of the SD, Aemter III and VI, were women. These persons were not entitled to wear the uniform of the SS formation SD.

According to the subdivisions of the trial brief against the Gestapo and the SD, I shall discuss:

a. The charge of Conspiracy

b. Crimes against Peace

c. War Crimes

d. Crimes against Humanity.

I shall now refer to the conspiracy charges. I still do not have Evidence III of the English trial brief against the Gestapo and SD.

Aemter III and VI are accused of having participated in a conspiracy to commit crimes against peace, war crimes, and crimes against humanity. There are three possibilities for an organization to be in contact with a circle of conspirators:

I. The organization can belong to the circle of conspirators. This presumes that all the members of the organization participated in the agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means.

It must therefore be proved (a) that such a plan existed, and (b) that all members adopted this plan as their own (Archbold: Pleading, Evidence, Practice, Page 1426).

Second possibility: Organizations can have the aim and the purpose of supporting participants in a conspiracy. For this is required: (a) A secret plan or an agreement; (b) the organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan; (c) all members must have known of it and desired it.

Third possibility: The organization can be used objectively by conspirators to carry out the secret plan without the members realizing it.

In this case there can be no question of punishable participation of the organization, because the characteristic of factual culpability is lacking. The organization is merely an unpunishable tool and cannot be declared criminal.

On Case I the Prosecution has submitted that not all participated in the conspiracy, though all contributed to the offenses (Session of 20 December 1945). This indicates that the Prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question.

12

27 Aug. 46

The punishable support of a conspiracy, Case II, also requires (a) the existence of a secret plan, (b) knowledge on the part of the members.

Therefore the existence of a secret plan and the members' knowledge thereof must also be proved.

Hitherto it has in no way been shown that such a plan for the commission, of crimes against peace, war crimes, and crimes against humanity actually existed.

This has already been presented in detail by counsel for the principal defendants and I do not want to repeat these statements, but I should like briefly to point out the following:

A conspiracy cannot be considered proved until evidence is brought as to: time, place, persons among whom this common agreement was reached, and nature of the contents.

Even if such a plan should have existed, it has in no way been shown that it was known to members of the SD, and that therefore they had in mind the purpose of supporting such a conspiracy with their activity. The Prosecution has derived the fact that such a conspiracy existed in particular from facts mentioned in the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations which participated had no knowledge of these things; this can be assumed as being known to the Court.

If the fact of a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity, arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity.

The facts which the Prosecution produced to prove that members of the SD knew of a conspiracy cannot be regarded as "violent" assumptions, nor as "probable" assumptions, but at most as "light" or "rash" assumptions which are without significance (Archbold: Pleading, Evidence, Practice, 1938, Pages 404, 405).

Furthermore, I believe that the examination of witnesses and the affidavits has brought proof that members of the SD had no knowledge that a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity existed and that, therefore, there was no intention in the SD to support such a circle of conspirators with their activity.

It is, thus, impossible to pass sentence on the SD for participation in a conspiracy, because proof is lacking that (a) a circle of conspirators did in fact exist, and (b) the members of the SD had knowledge of this fact and intended to afford assistance to such a circle of conspirators by their activities.

13

27 Aug. 46

Therefore, in this Trial before the International Military Tribunal it does not matter whether the SD supported the SS, the Gestapo, the Party, or individual persons of the State leadership, unless the Prosecution has brought proof of the prerequisites which I have indicated: (a) existence of a secret plan for the commission of crimes according to Article 6, and (b) knowledge on the part of the members of the SD.

Furthermore, the factual submission of the Prosecution concerning the co-operation of the SD with the SS, the Gestapo, or other persons, requires correction.

I have already explained that the SD did not form part of the SS, but that the Domestic Intelligence Service and the Foreign Intelligence Service were independent organizations. The question arises whether the independent organization of the SD aided the independent organization of the SS in pursuing its aims and tasks.

The Prosecution have claimed that this was the case. In refutation of this I wish to draw attention to the testimony of the witness Hoeppner and to the affidavit (Number SD-27) by Albert, who have stated that the SD could be considered an SS Intelligence Service only until the beginning of the year 1934, but that this task had been discontinued as from that date, so that the SD became the general Intelligence center for the State and the Party. These facts have been corroborated both by the witnesses Ohlendorf and Hoeppner and by the SS witnesses Pohl, Hausser, and Reinecke.

As regards the position of the SD in relation to the Police, the Prosecution have maintained that the SD formed part of a uniform police system and that the two sections had been merged into a powerful, politically centralized police system (Session of 19 December 1945). Specifically, the SD did not become part of the Police or of a police system either by the appointment of Himmler as Deputy Chief of the Gestapo in Prussia, or the appointment of Heydrich as Chief of the Security Police and the SD in June 1936, or by the institution of the Reich Security Main Office (RSHA) in September 1939. 1 refer to the, statements of the witnesses Hoeppner, Roessner Wisliceny, and Best in connection with this subject. In refutation of the Prosecution's claim it must be established that the SD never formed part of the Police (Affidavits SD-2, 27, 28, 33, 34, 35, 61, 63), nor did the SD ever have to undertake police work in any sphere of life (Statement by Hoeppner, SD-2, 18, 63).

As to organization, the position of the SD with regard to the Security Police within the Reich was different from that in the occupied territories. I refer to the Headquarters Manual of the United Nations, which I submitted as Document Number SD-70, where the organization of Aemter III and VI is correctly given, and also to the testimonies of the witnesses Best, K. H. Hoffmann, Hoeppner, Dr. Ehlich, Dr. Knochen, Straub and Affidavits Numbers SD-25 and 26.

They all show that within the Reich the agencies of the SD, Aemter III and VI, were always independent with regard to the Security Police. No connection between the SD and the Security Police was formed either by the Higher SS and Police Leaders or by the inspectors of the Security Police and the SD. The latter enjoyed personal privileges of inspection over the agencies of the Security Police and those of the, SD, and therefore they did have knowledge of some of the ordinances relating to any one of the agencies under their control. However, it is not permissible to conclude, from the simple fact that they issued or received some decree, that such decree was necessarily within the competence of the SD. The point is rather, as with all decrees of the Chief, the inspectors, and the commanders of the Security Police and the SD, whether they were dealt with by Aemter III and VI. This can be ascertained from the reference numbers. Only those decrees showing the reference numbers III and VI came within the scope of the Domestic Intelligence Service or the Foreign Intelligence Service and might be charged to the SD. As regards the Higher SS and Police Leaders I wish to refer to Affidavit Number SD-34, for the inspectors of the Security Police and the SD to Affidavit Number SD-35 and the testimony of Hoeppner.

14

27 Aug. 46

In the territories occupied by Germany the Security Police and the SD for purposes of organization were united under the commanders of the Security Police and the SD. The Domestic Intelligence Service was dealt with by Department III, the Foreign Intelligence Service by Department VI, while Department IV was the Gestapo and Department V the Criminal Police. Thus, one cannot speak of a uniform organization of Aemter III and VI in the Reich and abroad. The Domestic Intelligence Service in Germany, the Foreign Intelligence Service in Germany, and the activities of the Stapo, the Criminal Police, and the SD in the occupied territories, united for organizational purposes under the commanders of the Security Police and the SD, represented different organizations. It must be noted that, as to their tasks, the Independence of Aemter III and VI in foreign countries was ensured (Affidavit SD-56).

Special reference must be made to the relationship between the SD and the Gestapo. The Prosecution have suggested that the Gestapo was the executive organ, while the SD attended to espionage (Session of 19 December 1945). This description of the relationship between the Gestapo and the SD is not correct. Actually, it is hardly possible to define clearly the relationship between the Gestapo and the SD for the entire period from 1931 until 1945. It varied according to time and place. As regards the period before 1934, I have already shown that presumably there were no relations between the Gestapo and the SD, since at that time the SD was the Intelligence service of the SS. The decree of 1938, defining the functions of the two bodies, whereby the Gestapo was entrusted both with combating and detecting enemy activities, must have been of primary Importance. As far as the SD Hauptamt was concerned, this concluded the activities of its former Central Department II/1, which had dealt with enemy detection, in contrast to Central Department II/2, which provided an analysis of the domestic scene. The Central Department II/1 of the SD Hauptamt was accordingly dissolved (Affidavit SD-27). The Amt III of the RSHA, which is indicted here, was the former Central Department II/2, dealing with the analysis of the domestic scene (Affidavit SD-27). The activity of Central Department II/1, consisting of enemy detection, cannot be charged to Amt III. The tasks and aims of Central Department II/1 were completely different from those of Amt III, and the former never was part of the latter; nor can it be regarded as the predecessor of Amt III, which had been the Department II/2 of the SD Hauptamt. The contradictory statements of witnesses as to the co-operation between the SD and the Gestapo can undoubtedly be traced to this evolution of the SD and the change in the tasks allotted to it. Actually, co-operation between Amt III, which had developed out of Central Department II/2, and the Gestapo was never any closer or more extensive than In the case of other authorities. However, the Central Department II/1 had never been an intelligence center for the Gestapo either, but operated entirely independently of that institution (Affidavits SD-16, to 19, 27, 55). Dr. Best, a witness for the Gestapo, has perhaps provided the best characterization of the relationship by stating that in those years experiments were continually being made with the SD. In trying to prove the close co-operation existing between the Stapo and the SD the Prosecution have mainly based their accusation on the book by Dr. Werner Best, Die Deutsche Polizei (Document Number PS-1852). In testifying, the author has explained that this was a private piece of work devoid of any official character; Best also stated that he had simply described a development with an eye to the future.

The Prosecution have also referred to Documents 1956-PS, Das Archiv, and 1680-PS, the article, 10 Jahre Sipo und SD , and also to a statement by Heydrich on occasion of the Day of the German Police. The Prosecution have further mentioned Document 1638-PS, the decree of the Reich Minister of the Interior, dated 11 November 1938, on the co-operation of all offices of general and interior administration with the SD. In refutation of the interpretation of this decree, as given by the Prosecution, I wish to refer to the testimony of the witnesses Best and Hoeppner, and to Affidavit Number SD-36. With regard to the testimony of the witnesses Albath, Oldach, and Huelf I refer to Affidavit Number SD-71 by Schraepel to Affidavit Number SD-36, Figure 4c, and to Number SD-28. In establishing the relationship between the Stapo and the SD I refer to the testimony of Ehlich, Roessner, and Hoeppner, and to Affidavit Number SD-70, Section 6. In connection with Exhibit Number RF-1540 I refer to the testimony of the witness Roessner.

In substantiation of the fact that it may very well be correct that witnesses before the Tribunal, the Commission, or in their affidavits stated that the task of

15

27 Aug. 46

the SD had not consisted in supplying the Gestapo with material leading to the persecution of Political enemies, I am submitting two instances of evidence by persons who have not the slightest cause to give protection to the SD. The first concerns the affidavit given by Dr. Ritter, the well-known professor of modern history at the University of Freiburg. Dr. Ritter is an enemy of National Socialism and has never been a member of the Party or any of its organizations. He belonged to the Goerdeler Circle, and was to have been Minister of Culture in a cabinet to be formed by Goerdeler following 20 July 1944. Dr. Ritter's lectures were regularly recorded by the SD, Amt III. However, it is obvious from his affidavit that the SD failed to turn over the material collected against him to the Gestapo, although he was known to be an enemy of the regime. When Dr. Ritter was arrested in connection with 20 July 1944 his statements before the Gestapo could have been refuted by the material in the possession of Amt III, which however was not done.

Document Number SD-71, which I have also submitted, is a letter referring to the Prosecution Document R-142, which has repeatedly been mentioned during these proceedings. This is a letter by the local SD office in Kochem stating that the plebiscite of 10 April 1938 in Simmern had been checked and that It had been found that a clergyman, Wolferts, had voted "No." Wolferts has died in the meantime, but from a letter by his daughter it has been established that neither the SD nor the Gestapo took any steps against Wolferts on the grounds of his vote.

Such activities of the SD, therefore, were not intended to provide the Gestapo with material leading to the persecution of political enemies. In connection with this document I also refer to the testimony of the witnesses Hoeppner and Roessner. At the same time I wish to draw attention to the fact that it was the task of the SD to co-operate with all authorities, as can be seen from Documents Number SD-3 to 8, which I have submitted.

On the subject of the relationship between the SD and the Party the witness Hoeppner has spoken at considerable length. It is true that the SD was to keep the Party informed; a direct connection between the Party and the SD, however, has never existed (Document SD-15a, Affidavit SD-27). This has been established not only by the testimony of witnesses for the SD, but also from the statements of the witnesses interrogated on behalf of the Party; I refer to the testimony of Kuehl, Von Roedern, Biedermann, Schneider, Lauterbacher, Hirt, and Wolf.

The witness Meyer-Wendeborn testified that the SD had developed on its own and had never received instructions. I also refer to the testimony of the witness Kaufmann, who was Gauleiter in Hamburg and stated that he was familiar with everything that occurred in his Gau with the exception of the activities of the Stapo and the SD.

In support of their claim that the SD had secretly marked ballot sups in order to be able to identify persons voting in the negative or turning in invalid ballot slips in a plebiscite, the Prosecution have put in another document emanating from the local SD office at Erfurt and dated May 1938 (Document GB-541). I would point to the fact that it was a local and therefore subordinate office, and by analogous reference to my Document Number SD-69 it may equally be assumed that nothing at all was undertaken with regard to persons voting in the negative. This, after all, is the essential criterion. These two documents are certainly not sufficient to provide proof for the fact that in general the SD was allotted the task of keeping a check on the plebiscites with a view to eliminating enemies of a conspiracy. As counter-evidence showing that these activities on the part of the local SD offices at Erfurt and Kochem were completely removed from the normal activity of the SD, I wish to refer to the Affidavit Number SD-27 by Albert, who was employed in the central office in Berlin. Albert has stated that the central office in Berlin never issued any instructions to affix secret markings to ballot slips in elections or plebiscites. As a matter of fact, there is no connection between the documents from Erfurt and Kochem. Erfurt calls for a report on probable negative voters before the election. Kochem reports after the election that persons belonging to the election committee in one small village of the area had marked ballot slips. This election committee had nothing to do with the local SD office.

I also refer to the 196 affidavits for the entire territory of the Reich, which I have compiled in a list, and where it is stated that it was not the task of the SD to mark ballot slips or undertake similar action in order to detect negative voters. Such instructions or orders were never issued by the central office.

16

27 Aug. 46

The Prosecution have also suggested that the SD had exercised direct influence on the choice of Nazi leaders, and have submitted the affidavit by Dr. Hoettl (Document 2614-PS) in substantiation of their claim. In my supplementary affidavit, Number SD-27, Hoettl has declared that the SD did not exercise any direct influence on the choice of Nazi leaders, and I also refer to Affidavits Numbers SD-4 to 10, 39, 61, and 63, and to the affidavits compiled in the collective list, Number SD-70.

The Prosecution have furthermore alleged that the SD had checked the loyalty and reliability of civil servants. Here I refer to the testimony of the witnesses Hoengen and Roessner, and to Affidavits Numbers SD-3, 7, 8, 9, 61, 63, and Document Number SD-14, as well as to the affidavits compiled in the collective list, Number SD-70.

Concerning the aims, purposes, and methods of the indicted Amt III, I should like to refer to statements made in Document SD-70, the handbook of the Supreme Headquarters of the United Nations of April 1945. There it says:

"The SD maintained for its purposes a network of newsmen throughout all fields of life in Germany"--some words are missing--"who were recruited from all social strata and professions. The information gained through the newsmen was used in the situation reports....

"These reports are exceptionally frank and contain a complete and uncolored picture of the mood and attitude in Germany ...."

The correctness of this is proven by the 649 affidavits submitted in my summary and made by former full-time and honorary workers and Vertrauensmaenner (persons entrusted with special tasks) for the total area of the Reich and for parts of the Reich.

The aims, purposes, and-activities of Amt VI are shown by Affidavits SD-61, 62, and 66, also by Document SD-1.

In regard to Amt VI I refer particularly to Affidavit SD-66.

I shall now turn to Section B: Crimes against Peace (Statement of Evidence V of the English trial brief against the Gestapo and SD).

As a crime against peace the SD is accused of having staged so-called border incidents before the outbreak of the war to give Hitler an excuse for starting the war. The Prosecution, however, referred to only one border incident in which the SD is alleged to have participated. That is the alleged attack on the Gleiwitz radio station.

In this connection the Prosecution made reference to the affidavit of Alfred Naujocks of 20 November 1945. This is Prosecution Document 2751-PS. The deponent of Document 2751-PS, Alfred Naujocks, was heard before the Commission. On that occasion he declared that the execution of the attack on the Gleiwitz radio station was not included in the aims and purposes of Aemter III and VI.

The witness further testified that no sections of Aemter III and VI were used for the execution of that border incident in Gleiwitz and

17

27 Aug. 46

that the men who with him attacked the Gleiwitz station did not belong to the SD, Amt III.

The witness also stated that by the term "SD men" in his affidavit of 20 November 1945 he did not mean the members of any definite office of the RSHA; but common usage of the term "SD men" referred to RSHA members of all offices which were subordinate to Heydrich.

The witness further stated that he was charged with the execution of the border incident at Gleiwitz, not because he belonged to Amt VI and worked there, but that exclusively personal reasons were responsible for that decision. The witness testified that on the basis of the conversation he had had with Heydrich he had gained the impression that Heydrich would have given him that assignment even if he had not been a member of Amt VI and the SS. The order for the execution of this assignment reached the witness Naujocks not through the official channels of the chiefs of Aemter III or VI. The chiefs of Aemter III and VI had no knowledge of this action.

The members of the SD, Amt III and Amt VI, had no knowledge that the attack was carried out by Naujocks, a member of Amt VI. Particularly the members of the SD-Leitabschnitt which was in charge of Gleiwitz, and the outpost of the SD, had no knowledge of this activity and could not have had, because Naujocks had been forbidden to get in touch with any members of the SD whatsoever in that territory.

The statements of this witness have been reaffirmed by the witness Somman and through Affidavit Number SD-11, deposed by Dr. Marx.

I also submitted 215 affidavits for the office of the RSHA as well as for all territories of the SD-Leitabschnitte and the SD-Abschnitte, particularly for those situated in the regions of Katowice, Danzig, and Saxony. Those affidavits testify that the members of the SD during the critical time had no knowledge of the faked border incidents or the participation of the SD in them.

The affidavit by the witness Dr. Mildner (2479-PS) is refuted by the testimony of the witness Naujocks and Affidavit Number SD-11, Dr. Marx. This subject matter does not provide sufficient grounds to declare the SD to have been criminal, since this would presuppose proof of the fact that the SD as an organization was employed in the aggression, and that its members had cognizance thereof.

The Prosecution have also submitted Document Number USSR-509 as proof of the fact that the SD had participated in the preparations for a solution by force of the Czechoslovakian problems. The first letter bearing the Number III 225 is a draft without reference number and date, which was signed only by the official who prepared it. His superiors failed to sign the draft and rejected it. The other letter should carry no weight as far as the organization of the SD is concerned, because no proof is forthcoming to show that such activities were known to all members. The letter indicates that this was clearly not the case.

In the course of the session of 2 August 1946 the Prosecution have alleged that this document also contains a reference to the preparation of liquidations. As will be seen from Page 7 of the first letter this is not the case.

18

27 Aug. 46

In order to judge whether the SD can be declared criminal on the grounds of the activities of the Einsatzgruppen, the following questions must be examined:

1. Did the Einsatzgruppen A, B, C, and D, which were assigned in the East to the army groups, belong to the organization of Aemter III, VI, and VII?

2. Were parts of these office organizations used in these Einsatzgruppen?

3. Did the Aemter III, VI, or VII give orders to the Einsatzgruppen to commit crimes against the laws of war and against humanity?

4. Did the members of the Domestic Intelligence Service (Amt III), or of the Foreign Intelligence Service (Amt VI), have any knowledge of the activities of the Einsatzgruppen, which are crimes in the sense of the Charter?

First I must rectify an error. In this Trial and before the Commission the Einsatzgruppen have repeatedly been designated as Einsatzgruppen of the SD, up to a short time ago. As an example, I refer in particular to the records of Keitel, Dr. Best, Hausser, and Von Manstein. This designation is wrong. The four Einsatzgruppen employed in the East were designated A, B, C, and D. They had under them the Einsatzkommandos, which were designated by the Numbers 1 to 12. Thus the word "SD" is mentioned neither in the designation of the Einsatzgruppen nor of the Einsatzkommandos. Furthermore, there was no reason for that since, according to the evidence submitted by the Prosecution, only 3 percent of their members were part of the SD Aemter III or VI. The members of the SD were in the eighth place, as far As membership was concerned. I refer you to the statistics found in Document L-180 submitted by the Prosecution and repeated in the record of 20 December 1945.

The designation of the Einsatzgruppen is also shown by the distribution list of Prosecution Document D-569. This shows the various relationships. The Einsatzkommandos 1-a, 1-b, 2, and 3 were under Einsatzgruppe A; Einsatzkommandos 7-a, 7-b, 8, and 9 --Moscow-- were under Einsatzgruppe B; 4-a, 4-b, 5, and 6 were under Einsatzgruppe C; 10-a, 10-b, 11-a, 11-b, and 12 were under Einsatzgruppe D.

The setting up of the Einsatzgruppen was not ordered by Aemter III, VI, or VII, but by Himmler on the basis of an agreement with the High Command of the Army. I refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, to Document USA-557, and Affidavits Numbers SD-41 and 46. The evidence has shown further that the Einsatzgruppen and Einsatzkommandos were not under the orders of Aemter III, VI, and VIL I refer again to Document USA-557, Affidavits SD-41, 44, and 46, to the record of 3 January

19

27 Aug. 46

1946, to Prosecution Document L-180, Pages 2 and 3, to the record of 5 June 1946 and Document 2620-PS.

If one considers in particular the constitution of the Einsatzgruppen, which is set forth in the record of 20 December 1945, one will have to admit, as has been deposed by the witness Hoeppner and confirmed by the witness Bendt in Affidavit SD-41, that this concerns an affiliation of a special kind of persons who did not belong to the organizations of Aemter III, VI, or VII.

The evidence has further shown that no parts of the organizations of Aemter III, VI, or VII were employed in the Einsatzgruppen and Einsatzkommandos, and that the Aemter III, VI, and VII did not issue any orders for -the mass destruction carried out by the Einsatzgruppen. I refer to Affidavit SD-61, Affidavit SD-41, particularly the answers to Questions Numbers 6 and 9, and to Affidavit SD-44, Numbers 4 and 5.

The Einsatzgruppen and the Einsatzkommandos are special units which deviated in their composition entirely from the structure of the Security Police and SD in the Reich itself. I refer in this connection to the statements of Ohlendorf and Hoeppner and to Affidavits SD-41 and SD-46. The witness Best testified (Record of 31 July 1946): "They were Security Police units of a special kind."

It is of decisive significance for the question whether the organization can be declared criminal that no parts of the SD, Aemter III, VI, or VII, were employed in the Einsatzgruppen, but only individual members were assigned to these Einsatzgruppen as. a result of legal regulations. In this connection Hoettl's affidavit of 10 April 1946 seems especially important to me. I emphasize that this is a Prosecution document. Hoettl declared in the affidavit mentioned that the membership of the people in the SD was inactive during their affiliation with the Einsatzgruppen.

Insofar as members of Aemter III, VI, and VII were assigned by legal order to the Einsatzgruppen and Einsatzkommandos in the East, I refer for their tasks and activities to the testimony of Dr. Ehlich and Von Manstein, and to Affidavit SD-69.

The selection of the members of the Security Service for the Einsatzgruppen and Einsatzkommandos was not carried out on the basis of their position and duties in the Reich offices. For that point I refer to the testimony of Ohlendorf (Record of 3 January 1946) and Affidavits SD-41 and SD-45.

Thus I come to the conclusion:

(1) Einsatzgruppen A, B, C, and D did not belong to the Domestic Intelligence Service, Amt III, to the Foreign Intelligence Service, Amt VI, or to Amt VIL

(2) No parts of this organization were used for this purpose, but individual members were assigned to the Einsatzgruppen.

20

27 Aug. 46

(3) The legal position of these persons was the same as, for example, that of persons who had been called up for military service. Their affiliation with Aemter III, VI, or VII was inactive. They were no longer subject to instructions from their original offices. I skip the next pages, that is, 64, 65, 66, 67; Pages 68 to 71 deal with Einsatzkommandos in prisoner-of-war camps.

THE PRESIDENT: Dr. Gawlik, the Tribunal understands that the SS, the Gestapo, and the SD all disclaim responsibility for the Einsatzgruppen. Could you tell the Tribunal who is responsible for the Einsatzgruppen?

DR. GAWLIK: The Einsatzgruppen were subordinated to--the responsibility may be seen from my statement on Page 61. I should like to refer you to the testimony of Dr. Best, Schellenberg, Ohlendorf, and to Document ...

THE PRESIDENT: Dr. Gawlik, the Tribunal would like to know who you say was responsible for the Einsatzgruppen. They do not want to be referred to a crowd of documents and a crowd of witnesses. They want to know what your contention is.

DR. GAWLIK: The Einsatzgruppen, in my opinion, were organizations of a special kind which were directly under Himmler, and for the rest, the testimony of the witnesses diverges as to how far they were subordinate to the commanders-in-chief. Some of the witnesses have stated that they were subordinate to the commanders-in-chief, and some disputed this. As far as this question is concerned, I cannot define my attitude.

THE PRESIDENT: Was it possible, according to your contention, for Himmler to control these Einsatzgruppen without any organization, and if it was not, what organization controlled it?

DR. GAWLIK: The Einsatzgruppen had their own head, as may be seen from Prosecution Document L-180, the Stahlecker report. Stahlecker was the Chief of the Einsatzgruppe A, and this man probably sent this report, which was found, directly to Himmler, and from that I may assume that the heads of the Einsatzgruppen were directly under Himmler. That was a subordinate organization along with the RSHA for occupied countries. Your Lordship, may I...

THE PRESIDENT: Can you tell the Tribunal who were the individual men who composed the Einsatzgruppen? Did they consist of SS or SA or SD or the Wehrmacht?

DR. GAWLIK: Your Lordship, the composition may be seen in the record of 20 December 1945. I do not remember them exactly, Your Lordship, but I do know that they included Waffen-SS, Criminal Police, Stapo, SD ...

THE PRESIDENT: You are too fast. Waffen-SS?

21

27 Aug. 46

DR. GAWLIK: Waffen-SS, Criminal Police, Stapo, SD, and on this page, as far as I can recall, drivers are mentioned, and I believe interpreters, but I cannot say for certain. The various groups are stated exactly on this page, Your Lordship, which is Page 17 ...

THE PRESIDENT: I have down Waffen-SS, Criminal Police ... The last one I have got here is NSKK. What did you give then?

DR. GAWLIK: No, Your Lordship, not NSKK.

THE PRESIDENT: Waffen-SS, Criminal Police ...

DR. GAWLIK: Yes.

THE PRESIDENT: State Police?

DR. GAWLIK: Yes.

THE PRESIDENT: SD?

DR. GAWLIK: Yes.

THE PRESIDENT: NSKK?

DR. GAWLIK: No, drivers.

THE PRESIDENT: Well, I have crossed out NSKK.

DR. GAWLIK: Your Lordship, it is an error. The NSKK is not involved.

THE PRESIDENT: I have crossed out NSKK. Is there anything else? Any Gestapo?

DR. GAWLIK: Yes, Gestapo, of course. Your Lordship, State Police and Gestapo are identical. Interpreters are enumerated in this document. I believe -- as far as I can remember--these were the main groups, but at the moment I cannot tell you for certain.

THE PRESIDENT: Thank you.

DR. GAWLIK: I beg your pardon, did Your Lordship wish to know the chiefs of the Einsatzgruppen or the members?

THE PRESIDENT: I meant the memberships.

DR. GAWLIK: Yes, that is quite correct. Your Lordship, I wanted to add that altogether there were 1,000 to 1,200 men in these four Einsatzgruppen.

THE PRESIDENT: How many did you say?

DR. GAWLIK: One thousand to approximately 1,200 men, and from the SD there were 3 percent. That may be seen from the document. It is Document L-180. The setup is shown there.

That is Einsatzgruppe A, as far as I know; no documents are available for Einsatzgruppen B, C, and D, but the witnesses have testified that Groups B, C, and D had about the same ratio.

THE PRESIDENT: Then the extent is nearly four times as large as you said?

DR. GAWLIK: Yes.

THE PRESIDENT: Can you give a date for that constitution of Group A? What date was that, that constitution of those percentages?

DR. GAWLIK: The Einsatzgruppe D was formed before the beginning of the campaign, before June 1941.

THE PRESIDENT: When you get down to 0.3 percent, that must have been at a certain time. It could not have remained 0.3 percent all the time, could it, or is that an establishment?

DR. GAWLIK: Your Lordship, I do not understand. Which 0.3 percent do you mean?

THE PRESIDENT: I meant teletypists, 0.3 percent; wireless, 0.8 percent--did it remain at that exact figure throughout the whole war?

DR. GAWLIK: I assume so, Your Lordship. We do not have records on that.

THE PRESIDENT: The percentages are then matters of what in English would be called establishment?

DR. GAWLIK: They are average figures, Your Lordship. They may have changed slightly during the war, either more or less.

THE PRESIDENT: Very well.

DR. GAWLIK: I beg to apologize, My Lord, but I did not remember the first figure which I mentioned before the recess. I based my statement on the Einsatzkommandos and that is how I arrived at my figures.

Pages 68 to 71 deal with the Einsatzkommandos in prisoner-of-war camps (Statement of Evidence VI-B of the English trial brief against the Gestapo and the SD). Pages 72 to 75 deal with the

23

27 Aug. 46

Bullet Decree (Statement of Evidence VI-C). Pages 76 up to 79 deal with concentration camps (Statement of Evidence VI-D), Pages 80 to 83 deal with deportation (Statement of Evidence VI-E). Pages 84 to 89 deal with the Commando Order (Statement of Evidence VI-F) Pages 90 to 93 deal with the Nacht-und-Nebel Decree (Statement of Evidence VI-G). Pages 94 up to 96 deal with summary proceedings (Statement of Evidence VI-H). Pages 97 and 98 deal with liability of next of kin (Statement of Evidence VI-E). Pages 99 and 100 deal with the shooting of prisoners in the Sipo and SD prisons in Radom (Statement of Evidence VI-J). Pages 101 and 102 deal with the employment of force in confiscations (Statement of Evidence VI-K). Pages 103 and 104 deal with third-degree interrogations (Statement of Evidence VI-L); and I continue on Page 105, Section D, which deals with crimes against humanity (Statement of Evidence VII of the English trial brief against the Gestapo and the SD).

The tasks and activities, as indicted here as executive tasks, were not within the competence of Aemter III, VI, and VII (Affidavits SD-41, 42, 45, 46). In Document 3428-PS the head of the SD and the SD itself are constantly referred to, but this, as is apparent from the above-mentioned context, obviously refers to the office of the Security Police and the SD. I refer in particular to the Affidavit Number SD-69 of Breiter.

A number of documents, such as Exhibits Numbers USSR-1, USSR-6, and USSR-119, submitted by the Prosecution, mention the SD. Here too, however, the evidence can be taken to show that this cannot refer to the Aemter III and VI--Domestic Intelligence Service and Foreign Intelligence Service--or AmtVII of the SD, which are under indictment. In this context I also refer to Document 2992-PS, the statement by Graebe. Graebe declared that during the shooting of Jewish men, women, and children at the airport at Rovno an SS man, wearing SS uniform with an SD badge on his left arm, had been sitting on top of the ditch. This fact is not sufficient to provide proof of the fact that this was really a member of Aemter III, VI or VII, for in the occupied territories members of the Einsatzgruppen and the units under the commander of the Security Police and the SD, in particular the officials of the Gestapo and the Criminal Police, all used to wear the same uniform with an SD badge. This was the uniform of the SS special formation SD, not the uniform of Aemter III and VI. The SS Sturmbannfuehrer Puetz, mentioned in Graebe's report, was not a member of the SD, but a Government Counsellor and an official of the Gestapo. For this I also refer to Affidavit Number SD-50 by Wanninger.

The Prosecution have also submitted Document Number 501-PS on the use of gas vans. I must point out that Amt III never issued instructions on the use of gas vans, as testified by the witness Dr. Ehlich. Document 501-PS submitted by the Prosecution shows by its reference Number II that the matter of gas vans was dealt with in Amt II of the RSHA. The SS ObersturmbannFuehrer Rauff mentioned in the document was not a member of Aemter III and VI, but a group chief in Amt II of the RSHA. He was at that time in charge of motor transport. I refer in this connection to the testimony of the witnesses Ohlendorf and Hoeppner (Session of 3 January 1946) and to 60 affidavits from the entire Reich and the occupied territories for the period from 1941 to 1945, according to which the SD had nothing to do with the use of gas vans.

As regards the Prosecution Document 1475-PS I have already referred to Affidavit Number SD-69.

In the Prosecution Document L-180, the Stahlecker report, it is stated in enclosure Number 8 that the SD Section Tilsit had participated in liquidating Communists and Jews. For this I refer to Affidavit Number SD-12 by Ziebs. Ziebs belonged to the SD Main Section Koenigsberg, which received reports from the subsidiary SD Section Tilsit. Ziebs stated that the SD Main Section Koenigsberg never issued any such order and that no information was received there on the events described in the Stahlecker report. He, therefore, considers this

24

27 Aug. 46

statement to be a mistake as to the place or the subject-matter. If members of the SD Section Tilsit should have participated in the execution of Jews and Communists, which Ziebs himself considers quite impossible, such activity would have been outside the scope of the tasks of the SD Section Tilsit and would certainly not have become known.

The members of the Domestic Intelligence Service, the Foreign Intelligence Service, and Amt VII had no knowledge of the activities of the Einsatzgruppen, especially not of shootings.

Document 3867-PS, submitted by the Prosecution, shows that the distribution contained no office of the SD (Amt: III, VI, or VII or subsidiary offices). The reference Number IV A 1 indicates that the reports were compiled in an office of Amt IV (Gestapo).

The witness Hoeppner stated before the Tribunal that the Einsatzgruppen reports were not forwarded to subsidiary offices in the Reich and that members of SD offices in the Reich could not have had cognizance of the contents of the reports, including shootings of Jews and Communists. These reports went to only a few members of Amt III who were concerned with intelligence from the Eastern territories. I refer to the Affidavits Numbers SD-44, 47, 41, 48, 49, and 61; also to Document 2752-PS and the testimony of the witnesses Ehlich and Hoeppner.

I have also submitted 127 affidavits from all parts of the Reich for the period between 1941 and the end of the war, which prove in the main that (1) an members of the Einsatzgruppen were usually referred to as "SD" owing to their uniform equipment with the SD badge; (2) the employment of members of the SD in mass killings was not known to SD members in the offices within the Reich; (3) the honorary assistants of the SD had- no knowledge of the activities of the Einsatzgruppen and Einsatzkommandos in the East.

II. Einsatzkommandos in prisoner-of-war camps. The SD is also charged with having formed special formations in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable persons. My Documents Number SD 18-22 prove that this was not the task of the SD, but solely of the Stapo. These documents also show in particular that these Kommandos were not designated "Einsatzkommandos of the SD," as stated by the witness Lahousen.

The Defendant Jodl has confirmed the fact that prisoners of war were never turned over to the SD for special treatment, since the SD had entirely different tasks. The Defendant Jodl testified that prisoners of war were at the utmost turned over to the Security Police. It may thus be assumed to have been proved that the SD did not take part in these acts and was not employed for that purpose.

Although the witness Warlimont in his affidavit mentions that political functionaries were to be transferred to the SD (Document 2884-PS), this, in the light of the statement of the Defendant Jodl, may be taken to be a mistake in terminology, and presumably refers to the Gestapo. The documents submitted by the Prosecution fail to prove the contrary.

The witness Lahousen, in his affidavit of 14 November 1945 (Document 2846-PS), mentions the SD, although obviously he means the Security Police. This is clearly apparent from a statement he made before the Tribunal on 30 November 1945. According to the minutes of a conference which took place on the subject of the employment of these Kommandos between General Reinecke and Mueller during the summer of 1941, he mentions Obergruppenfuehrer Mueller of the SD (Session of 30 November 1945). The Tribunal is familiar with the fact that Mueller never belonged to the SD, Amt III or VI, and that he was the Chief of Amt IV, Gestapo, until the end. The witness Lahousen thus evidently was not referring to the SD, Amt III or VI, but to the Gestapo. The testimony of the witness Lahousen clearly indicates the competency of the Gestapo. He testified that Mueller had taken part in the conference because he was competent for the executions in prisoner-of-war camps.

Document 502-PS supplies no proof of any participation of the SD. On the contrary, it proves that the Gestapo alone was competent for such measures, for the fourth paragraph before the end specifies that the Chief of the Einsatzkommandos was to contact the chief of the nearest local Gestapo office in connection with any executions or other measures. The Prosecution Document 1165-PS also proves that only the Gestapo was competent for such action, because these instructions, which referred to the executions undertaken, are

25

27 Aug. 46

forwarded by Mueller, the Amtschef of the Gestapo, to all Gestapo offices. Had the SD, Amt III or VI, in any way participated in such action, these instructions would equally have been forwarded to all SD offices.

Document R-178 consistently, though erroneously, speaks of Einsatzkommandos of the Chief of the Security Police and the SD employed for the purpose of selection. The fact is that--as the document shows--only the Gestapo offices Munich, Regensburg, and Nuernberg-Fuerth undertook selection with their own special Kommandos. Captain Dr. Woelzl, mentioned on Page 21 of Document R-178, gave an affidavit saying that the SD had not participated in these selection Kommandos. In this connection I would also refer to Document 2884-PS. This is a decree by Warlimont, formerly Deputy Chief of Staff of the Wehrmachtfuehrungsstab, dated 12 May 1941, on the uniform handling of executions of British prisoners of war. In this decree Warlimont correctly designates the Einsatzkommandos as "Einsatzkommandos of the Security Police."

The fact that the Gestapo alone was competent for executions of prisoners of war is apparent from an affidavit by Lindow. Lindow states that Section IV A I had a subsection directed by the Regierungsoberinspektor, later Regierungsamtmann, and SS HauptsturmFuehrer Franz Koenigshaus. This dealt with prisoner-of-war matters. This subsection also attended to the decrees and orders of Himmler during the years 1941 and 1942, according to which captured Soviet-Russian Political Commissars and Jewish soldiers were to be executed. Koenigshaus is stated to have prepared the orders for the executions and submitted them to Mueller, the Chief of Amt IV. Early in 1943 the subsection was dissolved and distributed among the sections of IV B, according to countries concerned. In particular Lindow stated that the Einsatzkommandos in the prisoner-of-war camps had been directed by members of the Gestapo (Figure 4 of the Lindow affidavit, Document 2542-PS).

In proving my contention that the SD, Amt III, had no hand in these measures, I also refer to the affidavit by Fromm (SD-56). In this affidavit Fromm declared that the SD had special formations in the Government General. As to the territory of France, the witness Knochen stated before the Commission that no such special formations of the SD were employed in prisoner-of-war camps in France. I also draw attention to the testimony of the witness Ehlich before the Commission, who stated that such measures were not the task and activity of the SD, Amt III.

As for Amt VI, I refer to Affidavit Number SD-61, where the Witness Schellenberg has testified that Amt VI was not competent either and was never employed in this connection. For Amt VII the witness Dittel made the same declaration (SD-63).

I also submitted 266 affidavits showing that in Russia, Poland, Alsace, Italy, Yugoslavia, Czechoslovakia, Lorraine, and the following regions of Germany: South Hanover-Brunswick, the Saar territory, the Palatinate, Munich-Upper Bavaria, Cologne, Wuerttemberg, East Prussia, Upper Danube, Vienna, Military District VII, Bavaria, West Prussia, Styria, the Sudetenland, Hamburg, Upper Silesia, the Tyrol, Central Germany, Eastern Bavaria, Westphalia, Magdeburg-Anhalt, Berlin-Brandenburg, Swabia, Silesia, Central Franconia, Wartheland, Thuringia, Bremen, Holstein, Hesse, Saxony, and in a large number of cities, the SD did not have Kommandos in prisoner-of-war camps for the purpose of establishing and executing racially and politically undesirable prisoners of war. The declarations comprise the period between 1939 and 1945.

Bullet Decree. For the execution of the Bullet Decree the SD Within the Reich, Amt III, was equally not competent, and it has never been employed for this purpose. The responsibility and competency for this decree has been correctly described by defense counsel for the Defendant Goering. It is stated that Hitler, in the absence of Keitel, gave the order for the shootings to Himmler, who directly transmitted it to Mueller and Nebe. Mueller was Amtschef of the Gestapo, Nebe Amtschef of the Criminal Police. This proves that the Stapo and the Criminal Police were competent for the execution of the order. This also becomes clear from Document D-569 with annex, the decree by the Chief of the Security Police and the SD dated 11 December 1941, embodying an ordinance from the OKW of 22 November 1941.

The decree of 11 December 1941 specifies that Soviet prisoners of war were to be transferred to the Stapo or the Einsatzkommandos. The ordinance by the OKW, dated 22 November 1941, provides that escaped Soviet prisoners of war

26

27 Aug. 46

were in every case to be turned over to the nearest office of the Gestapo, such transfer to be subsequently reported to the Wehrmacht Information Center.

I also refer to the teletype by Mueller dated 4 March 1944 (Document 1650-PS, USA-246), which is addressed only to the Stapo offices and the inspectors of the Security Police and the SD. This teletype contains orders for the Stapo offices to report on the execution of the order. Paragraph 2 then goes on to state that the prisoners of war were to be turned over to the local police office. Paragraph 3 mentions that escaped and recaptured British and American officers and nonworking NCO's were to be held in police detention in the locality of the Stapo office. Paragraph 5 indicates that the local administrative and police authorities were advised of this decree. Aemter III and VI were not informed, which would have been indispensable had they had any part in these measures.

Clearly the Prosecution have assumed participation of the SD from the fact that the Amtschef of the Gestapo, Mueller, signed the decree as Deputy Chief of the Security Police and the SD, and also forwarded it to the inspectors of the Security Police and the SD. These titles, however, give no indication of any participation on the part of the SD.

The Prosecution have also referred to a letter from the Military District Command VI, dated 27 July 1944 (Document 1514-PS), but this document equally shows no participation on the part of the SD. In the heading preceding Figure 1 transfer to the Gestapo is specifically mentioned, and Figure 1a states that the camp commander was to transfer the prisoners of war to the Gestapo, while Figure 1b says that the prisoners of war were to be turned over to the nearest police office. Figure 1c mentions that recaptured officers were to be turned over to the Gestapo and Figure 1d specifies that Soviet officers refusing to work were to be transferred to the nearest Stapo office. Figures e, g, 3 and 4 equally only mention that the prisoners of war should be turned over to the Gestapo. The Document contains no orders indicating any participation of the SD. Under Figure 1f mention is made of the selection Kommandos, which are here designated as Einsatzkommandos of the Security Police and the SD. I have already enlarged upon the fact that the SD took no part in these Einsatzkommandos either, so that this is obviously an error in terminology. The statement under oath by Willi Litzenberg (Document 2478-PS) also provides proof that only the Security Police had a hand in these measures. The SD, Amt III, VI, and VII, is not mentioned at all in this document.

The hearing of evidence for the Tribunal has shown that the Bullet Decree was executed by the Gestapo and the Criminal Police and that the SD did not participate. I refer in particular to the statements of General Westhoff (Session of 10 April 1946). I also refer to the testimony of a Senior Government Counsellor of the Criminal Police, Max Wielen, who was interrogated on the subject of the shooting of 50 RAF officers from the camp at Sagan. Wielen testified that the shooting was carried out by officials of the Gestapo (Session of 10 April 1946).

In this connection I also refer to the testimony of Keitel, who stated that Hitler had given orders that the prisoners of war were not to be returned to the Wehrmacht, but were to remain in the custody of the Police. The witnesses Roessner and Ehlich have also testified that the SD did not participate in the execution of the Bullet Decree and had no knowledge of this. As for Amt VI, the former Amtschef Schellenberg has made the same declaration in Affidavit Number SD-61, while Dittel, at the end Deputy Amtschef VII, has done the same for that Amt by Affidavit Number SD-63. I also refer to Affidavit 56, where Fromm made that declaration for the Government General, and the testimony of Knochen to the same effect for France.

I have submitted 288 affidavits showing that in the entire territory in the Reich, in the occupied Russian territory, and in the occupied territories of France, Lorraine, Italy, Czechoslovakia, Yugoslavia, and Poland the SD had nothing to do with the execution of the Bullet Decree. The statements cover the period between 1939 and 1945.

Concentration Camps. Under Figure VI D of the trial brief against the Gestapo and the SD the SD is further accused of having been responsible for the institution and distribution of concentration Camps and for the assignment of racially and politically undesirable persons to concentration and extermination camps for the purpose of forced labor and mass murder.

The trial brief against the SS charges the SD with having been employed by the conspirators for the purpose of safeguarding their power by means of the

27

27 Aug. 46

concentration camps, and thereby terrorizing any opponents. The Prosecutor for the United States on 19 December 1945 suggested that the SD and the Security Police had participated in the system of concentration camps when they detected and arrested victims.

Nothing however has been stated in substantiation of these allegations. The entire Section VI D of the trial brief does not even mention the SD, except in the heading. The Prosecution themselves, referring to Prosecution Documents 2108-PS--which is contained in my document book under Number SD-36a -- and 1723-PS, state in Section VID on Page 43 of the trial brief that the Gestapo alone had authority to place persons in protective custody and that the Gestapo possessed instructions to institute concentration camps, transform prisoner-of-war camps into concentration camps, set up corrective labor camps and to form special sections for female prisoners. I therefore believe that I can be very brief on this subject.

The statements by the Prosecution also prove that the Gestapo was competent for the institution and distribution of concentration camps and that the local Gestapo offices carried out arrests (Session of 2 January 1946). The proceedings have demonstrated that the entire administration of the concentration camps (food, accommodation, camp regulations) was the task of the WVHA. which was directed by Pohl. Here I refer in particular to the testimony of Kaltenbrunner (Session of 11 April 1946). The Inspector of Concentration Camps was immediately subordinated to Himmler. I also refer to the testimony of the witness Hoess, and the same is shown by the documents submitted by the Prosecution.

The Prosecution Documents D-50 and D-46 also show the sole competency of the Gestapo. The documents were issued by Amt IV of the Reich Security Main Office and signed by Mueller, the Chief of that Amt. The Aemter III, VI and VII were not even informed of these decrees. The reference Number IV on Document 1063 A-PS also indicates that the Gestapo was exclusively competent, and it is irrelevant that the document was issued by Heydrich as Chief of the Security Police and the SD. This fact in Itself does not indicate the competency of the SD, and from the distribution it can be seen that the SD In no way participated.

From none of the other documents mentioned on Pages 44 to 46 of the trial brief (2477-PS, 1531-PS, L-358, L-215, 1472-PS, 1063-D-PS, L-41, 1063-E-PS, 701-PS and 2615-PS) does any participation of the SD in the infliction of protective custody or assignment to a concentration or corrective labor camp result.

The very statements of the Prosecution and the documents submitted by them thus go to show that the SD bad nothing to do with the institution and distribution of concentration camps and the transfer of racially and politically undesirable persons to extermination camps for the purpose of forced labor or mass murder.

In Document 3012-PS mention is made of an escape of SD prisoners, but from the context of the document it is clear that this refers to prisoners of the Sonderkommando IV A which had no contact, as far as organization goes, with the SD, Amt III, VI or VII.

I also refer to the testimony of Kaltenbrunner (Session of 11 April 1946), the affidavit by Dr. Mildner (Document Book Kaltenbrunner, Page 1), the testimony of Knochen, and the testimony of Von Eberstein, which equally show that the SD had nothing to do with concentration camps. Schellenberg and Dittel have shown in their Affidavits Numbers SD-61 and 63 that the Aemter VI and VII had nothing to do with the institution, distribution, and assignment of concentration camps either. I also refer to the affidavit by Fromm (Affidavit SD-56) and the affidavit by Laube (Affidavit SD-54), who have affirmed, for the former Government General and for France respectively, that the SD had no part in the assignment of persons to concentration camps or in the administration of such camps. In the case of France this was confirmed by the witness Knochen. As to the documents submitted by the Prosecution I refer to the testimony of the witness Dr. Ehlich (R-112, USA-309).

I also submit 289 affidavits for the entire range of the SD Hauptamt, as wen as for the whole territory of the Reich and numerous occupied territories. The authors of these affidavits, which cover the period between 1934 and 1945, have stated as regards these territories that the SD had nothing to do with the institution and guarding of concentration camps, or with the assignment of persons to such camps.

28

27 Aug. 46

Deportation. As a further charge against the SD the Prosecution have stated that the SD had participated in mass deportation of citizens of occupied countries for the purpose of forced labor. Furthermore, the Gestapo and the SD are alleged to have been in charge of punishment inflicted on forced laborers. The Prosecution have claimed that the important position which, besides the Gestapo, the SD had held on the subject of arrests for the purpose of forced labor, resulted from the following documents: L-61, 3012-PS, 1573-PS, 1063-B-PS. However, these very documents already provide proof of the fact that the SD was not competent for the entire subject-matter and did not become active in the execution.

Document L-61 is a letter by the Defendant Sauckel, dated 26 November 1942, to the presidents of the Provincial Labor Offices, in which it is mentioned that the Chief of the Security Police and the SD, In other words, Heydrich, had informed him that in the course of the month of November the Poles would be evacuated from the district of Lublin. This communication on the part of Heydrich, however, in no way shows that Heydrich made use of the Aemter III, VI, and VII for the purpose of this evacuation -- if it was carried out at all, which is by no means certain. Such a procedure is, on the contrary, unlikely, for evacuation did not feature among the tasks incumbent on these Aemter.

Document 3012-PS is a letter from the Chief of the Sonderkommando IVa to the Kommando chiefs of his subsidiary Kommandos. I have already indicated that the Einsatzgruppen were entirely independent organizations from the Aemter III, VI, and VII, so that this document cannot be looked upon as incriminating any one of the Aemter named. Incidentally the document shows that the deportation was not carried out by the SD, but by the Security Police. It states literally:

"In view of the present political situation, particularly with regard to the armament industry within the Reich, Security Police measures must be largely subordinated to the problem of the mobilization of labor in Germany."

In all other places this document also only mentions measures to be carried out by the Security Police.

The next Prosecution Document, 1573-PS, clearly demonstrates the competency for the execution of measures directed against foreign workers, and also indicates that such measures were applied by the State Police. This document bears the reference Number IV. It is signed by Mueller and addressed only to State Police offices, the SD not even being mentioned in the letter, if only for information. It would undoubtedly have had to have been addressed to the SD too, if, as the Prosecution alleges, that agency had been employed in applying these measures.

As far as corrective labor camps are concerned, the Prosecution Document 1063 B-PS clearly shows that the Security Police was exclusively competent for them. It says in this document:

"The Relchsfuehrer SS has authorized, apart from the concentration camps administered by the WVHA, the institution of labor corrective camps, which will be exclusively in the competence of the Security Police."

During the session of 12 December 1945 the Prosecution have submitted a secret order by Hitler of 20 February 1942 (Document 3040-PS), concerning Eastern Workers and measures of compulsion to be employed in connection with them, and have alleged that this order had been addressed to the SD police officers, who never existed. The SD had no officers; only the Police did. From the contents of this document it can be seen clearly and without any doubt that the Gestapo alone was competent. It says in this document:

"Lack of discipline, which includes refusal to work in disobedience to orders and slackness in work, will be combated only by the German State Police. Simple cases will be settled by the chief of the guard on the instructions of the State Police. In serious cases ... the Gestapo will intervene with the means at its disposal."

In connection with the Prosecution affidavit made by Dr. Wilhelm Hoettl (Document 2614-PS) I have submitted the supplementary Affidavit Number SD-37 and the affidavit Gahrmann Number SD-38. Beyond this, in proving that the SD took no part in deportations, I refer to the testimony of the witness Ehlich before the Commission, the affidavit by Fromm, Number SD-56, and by Laube,

29

27 Aug. 46

Number SD-54. The affidavit by Fromm, in particular, refutes the Prosecution Document L-61. As for France, the witness Knochen has testified that the SD did not participate in deportations.

The Prosecution Document 1063-PS also shows that the corrective labor camps were not subordinate to the SD, Amt III, VI, or VII. In, this document it says specifically that the corrective labor camps were solely the competence of the Security Police. In particular I wish to refer to the testimony of the witness Albath before the Commission, who confirms this fact.

I have also submitted 276 affidavits by which members of the SD for the period between 1939 and 1945 have stated, as regards the territories formerly occupied by Germany of Alsace, Russia, Poland, France, Belgium, Italy, Yugoslavia, Czechoslovakia, and the entire territory of the Reich, that the SD was not employed in connection with the deportation for forced labor or in guarding forced labor camps.

As far as Aemter VI and VII are concerned, I refer to the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63), which show that these Aemter were not active in the deportation and did not guard forced labor either.

Furthermore, it is stated in the trial brief against the SS, III G, that immigration centers were organized for the purpose of conducting evacuations under the control of the Chief of the Security Police and the SD and the Chief of the Reich Security Main Office. In this connection the Prosecution cite Document L-49, an affidavit by Otto Hoffmann. For this I refer to the testimony by Dr. Ehlich and the affidavit by Sandberger (Affidavit SD-64).

Commando Order. A further accusation brought against the SD of having participated in the execution of the Commando Order is due to the fact that the Wehrmacht agencies by mistake used the abbreviation "SD" for the Security Police. In this connection I would refer to my earlier statements in the second chapter. The fact that in documents and interrogations of witnesses the term SD has been used, although no reference to the Aemter III and VI was intended, can be traced to this repeated error in terminology.

In the first place this applies to Document 498-PS, Exhibit USA-501. The distribution on this document clearly shows that "SD" was not intended to mean the intelligence service, Amt III or VI, but the Security Police. According to this distribution the Reichsfuehrer SS and Chief of the German Police had received the 16th and 17th copy, one being for the Main Office Security Police. Aemter III and VI do not figure in the distribution. If the SD in the Reich, Amt III, or abroad, Amt VI, had been competent for this measure, this order would have had to have been transmitted to these two Aemter, since otherwise they would not have been able to comply with it.

That, in fact, the execution of this order was not the task of the SD, Amt III or Amt VI, but of the Security Police, is clear from the letter by Mueller, dated 17 June 1944 (Document 1276-PS, USA-520) and addressed to the OKW. This letter deals with Hitler's order of 18 October 1942 and the execution thereof. Among other things it says:

"Transfer to the Security Police will only be considered when such members of Commandos ..."

The last paragraph mentions security measures. The reference Number IV and the fact that the letter was written by Mueller, and not by one of the Amtschefs III or VI, clearly indicates that these measures were carried out by the Security Police, and not by Amt III and VI.

This particular document evidences the repeated error as to SD and Security Police; it is quite clear from this letter that the term SD was employed as an abbreviation for the Security Police. Although the text of the letter contains only the term Security Police, and it is specified that the Commandos are to be turned over to the Security Police, and that Security Police agencies shall assist in interrogations conducted by the Wehrmacht units, the letter contains a handwritten annotation by the official in charge at the OKW saying: "Thus arrested by SD."

Another mistake in terminology common in Wehrmacht agencies occurred when Admiral Wagner during his interrogation before the Tribunal on 14 May 1946 persisted in speaking of the SD in connection with the Trondheim incident.

The same mistake in the application of the word SD is contained in Prosecution Document 532-PS (Exhibit Number RF-361), a letter from Commander-in-Chief West dated 26 June 1944, and in Documents Numbers 531-PS, 551-PS,

30

27 Aug. 46

D-649, 727-PS, 735-PS, D-774, D-775, D-780 and Exhibit GB-26. This erroneous application of the term SD had apparently become the custom with the Wehrmacht and other offices to such an extent that even Raeder, Keitel and Doenitz speak of transfers to the SD, although the SD was not competent for such measures.

The Prosecution have further referred to the Decree of 4 August 1942 (Document 553-PS, USA-500) which, however, shows clearly that the Security Police were competent for the execution of this order. The order does not say that parachutists were to be turned over to the SD, but it was specified that they were to be transferred to the offices of the Chief of the Security Police and the SD. The same applies to Document Number D-864, Exhibit Number GB-457, in which reference is exclusively made to the competent office of the commander of the Security Police and the SD. This is something entirely different. The Chief of the Security Police and the SD was identical with the Chief of the RSHA and superior to the Aemter I to VII. This term thus fails to furnish proof that Aemter III and VI were competent. Beyond this, the Decree of 4 August 1942 makes it clear that by these offices only Aemter IV and V, that is, Gestapo and Criminal Police, can be meant, because under I, Figure 1, it says:

"In all territories where the offices of the Security Police and the SD are established as executive, combating of individual parachutists is..."

I draw attention to the words "as executive". Offices as executive agencies were only those of the State Police and the Criminal Police. The SD had no executive powers.

The hearing of evidence before the Commissions has clearly shown that such orders have been executed solely by the Security Police, although in numerous documents, owing to an error in terminology, the SD is mentioned in place of the Security Police. I refer primarily to the Prosecution Document 526-PS, Exhibit Number USA-502, a top-secret matter, dated 10 May 1943, where it says that the Fuehrer Order had been executed by the SD. The witness Dr. Hoffmann testified on 27 June 1946 before the Commission that here, since it was an executive measure, Security Police should be read instead of SD, because the Wehrmacht often mixed up the two terms. The correctness of the statements of the witness Dr. Hoffmann is corroborated by the testimony of the Defendant Jodl as a witness before the Tribunal.

The Prosecution have next referred to Document C-176, Exhibit Number GB-228. This concerns the Commando action at Bordeaux, where it says on Page 713 that the two captured Englishmen had been shot by order of the Fuehrer in the presence of an officer of the SD. According to the testimony of the witness Knochen, the term SD was meant to indicate an official of the Gestapo.

The fact that the Security Police actually was competent for the execution of the Commando Order and that "Security Police" should be read instead of "SD" in the orders of 4 August 1942 and 18 October 1942, is also apparent from the affidavit by Dr. Mildner of 16 November 1945 (Document 2374-PS). In this affidavit Mildner has stated that instructions had been issued to the Wehrmacht to turn over all members of British and American Commando units to the Security Police. The Security Police was to have interrogated- and subsequently shot these men. Mildner has also stated that the decree had been transmitted, through the Chief of Amt IV, Mueller, to the commanders and inspectors of the Police. Had the SD, Amt III or Amt VI, been competent, the order would not have been transmitted by the Chief of Amt IV, Gestapo, but by the Chiefs of Aemter III and VI to the offices of these organizations.

I further refer to the affidavit by Walther Huppenkothen (Affidavit Gestapo-39), formerly a Government Director in Amt IV E, RSHA, who, in connection with the agreement between Amt IV and the OKW on the subject of treatment of enemy radio agents, stated that such persons were in all cases to be turned over to the Gestapo, and that the Gestapo had frequently though erroneously been designated SD by Wehrmacht agencies.

The Prosecution furthermore allege that the aims and tasks of the SD included affording protection to civilians who had lynched Allied airmen. In substantiation of this claim the Prosecution have submitted Document Numbers R-110 (Exhibit Number USA-333), 2990-PS, and 745-PS. Document R-110 is addressed only to the Police, not to the SD. According to the affidavit by Schellenberg of 18 November 1945 (Document 2990-PS) the Defendant Kaltenbrunner is stated to have said that all offices of the SD and the Security Police were to be informed

31

27 Aug. 46

that they were not to intervene in lynch actions against British and American airmen. In the supplementary affidavit submitted by me, Number SD-51, Schellenberg has stated that by this remark Kaltenbrunner did not refer to the SD but only to the Security Police. The letter from the SD Section Coblenz; to the Inspector of the Security Police and SD equally fails to show that the tasks of the SD included promotion of lynch justice, or that the SD had in any way taken part in such measures. The letter merely contains a communication from the SD Section Coblenz to the effect that the OKW had issued a similar order to Himmler's and Bormann's and that this order had been distributed down to company commanders for reading out to their units. It cannot, thus, be deduced from this letter that the SD had in any way taken part in such lynch justice, or had promoted it. I also refer to Document 057-PS, the order by Bormann, which is equally only addressed to the Police and the organizations of the Party. Kaltenbrunner's order, dated 5 April 1944 (Document 3855-PS, USA-806) is issued by Amt IV, Gestapo.

The witness Hoeppner declared on 1 August 1946 that the SD had received no instructions from Himmler not to interfere in clashes between the German population and Anglo-American airmen. Since the SD exercised no police functions, the problem of intervention did not arise in any case. The affidavits Schellenberg (Affidavit SD-60) and Dittel (Affidavit SD-63) show that Aemter VI and VII were also not competent for the execution of the Commando Order and lynch measures and have never been used to this end. I have also submitted Z84 affidavits for the entire territory of the Reich and covering the period between 1939 and 1945, which prove that the SD was in no way involved in the execution or maltreatment of Allied parachutists.

Nacht und Nebel Decree. A further point in the indictment of the SD deals with participation in the execution of the Nacht und Nebel Decree. Competence for the execution of the Nacht und Nebel Decree was divided between the Wehrmacht offices and the Gestapo, as is shown by Document L-90. The Wehrmacht offices had received instructions to impose the death penalty for criminal acts against the Reich and the occupation army, undertaken by non-German civilians. However, if no such punishment was to be expected, these civilians were, according to Paragraph IV of the first supplementary regulations to the instructions contained in Document Number 91, to be taken to Germany by the Secret Field Police, there to be turned Over to a Stapo office. I also refer to the ordinance by the OKW dated 2 February 1942 (Document L-90), which shows that the RSHA (Kriminaldirektor Dr. Fischer) was competent for the execution of the Nacht und Nebel Decree. From the Prosecution Document L-185, the plan showing the distribution of work in the RSHA, dated I March 1941, it can be seen that Kriminaldirektor Dr. Fischer was in charge of Subsection IV E 3, Counter-Intelligence West, in Amt IV.

This state of affairs is borne out by the second Prosecution Document 833-PS of 2 February 1942, signed by Canaris, Chief of the Amt Ausland Abwehr in the OKW. These instructions provide that subjects of foreign countries coming under the Nacht und Nebel Decree were to be sentenced by the competent military courts in the territories occupied by Germany, provided that (a) the sentence involves capital punishment, (b) sentence is passed within 8 days after arrest. In all other cases the counter-intelligence agencies were to determine the time of arrest. The counter-intelligence agencies were to communicate any arrests to the RSHA, attention of Kriminaldirektor Dr. Fischer. The RSHA would then name a Stapo office which was to take over the prisoners. The distribution too shows that Aemter III, VI, and VII were in no way involved.

The next Prosecution Document 668-PS, a letter by the Chief of the Security Police and the SD, dated 24 June 1942, with equal clarity shows the sole Competence of the Gestapo. The letter was issued by Amt IV, specifically by Subsection IV D 4. Had the execution of the Nacht und Nebel Decree come within the competence of the SD, this letter would have had to have been issued by one of the Aemter III, VI, or VII.

I further refer to the testimony of the witness Dr. Ehlich before the Commission and to the testimony of the witness Knochen. Both have stated in conformity that the SD was not competent for the execution of the Nacht und Nebel Decree and did not take part therein.

As to the decree by the OKW, signed by Keitel on 18 August 1944, it is true that it says that civilians were to be turned over to the SD; however, in this

32

27 Aug. 46

respect I refer to the affidavit by Keitel (SD-52). The same applies to the decree issued by Westerkamp on 13 September 1944, where the reference can also only be taken to mean the Gestapo.

In Document D-762, Exhibit Number GB-892, under Figure 1, the SD is not mentioned, but only the Wehrmacht, the SS, and the Police. The method of expression used in Figure 2 is unclear. Instead of "the nearest local office of the Security Police and the SD" it should have stated "the Chief of the Security Police and the SD." Document D-764, Exhibit Number GB-299, under Figure 4 correctly mentions the office of the Security Police and the SD. According to the whole context, Figure 5a can thus be taken as referring by "SD" to the competent police body. The SD was not even kept informed, as can be seen from the distribution. Of Document D-764, 11 copies were prepared; copies 1 to 10. were sent out to the Wehrmacht commanders, while copy 11 was communicated to the Gestapo. Had the SD been competent, the decree would have to have been sent to them as well.

In connection with the decrees signed by Keitel (Session of 11 April 1946), in which it says that certain persons were to be turned over to the SD, I refer to the testimony of Keitel, according to which the designation "SD" has erroneously been used instead of "Security Police."

I also submitted 270 affidavits which show that in the occupied territories of Poland, Yugoslavia, Latvia, Czechoslovakia, Russia, Lorraine, Belgium, Eupen-Malmedy, and in the following regions of Germany: Munich-Upper Bavaria, Rhine Province, Wuerttemberg, Hamburg, Saar-Palatinate, Silesia, Berlin, Styria, Thuringia, Sudetenland, Upper Silesia, the Tyrol, Saxony, Baden, Central Germany, Westphalia, East Prussia, Hesse, Moselle District, Eastern Bavaria, Holstein, Swabia, West Prussia, the SD had nothing to do with the execution of the Nacht und Nebel Decree. These statements cover the period from 1941 to 1945.

From the affidavits by Schellenberg (Affidavit SD-61) and Dittel (Affidavit SD-63) it is clear that Aemter VI and VII also had no hand in the execution of the Nacht und Nebel Decree.

Summary proceedings. Neither was the SD competent for the application of summary proceedings. In this connection I wish to draw attention to the following contradiction: In the heading of Section VI H the Prosecution allege that the SD, through summary proceedings, had arrested, brought to trial, and convicted subjects of occupied countries. In the text under this heading it is, however, shown that such special criminal proceedings were applied by the Police. All the documents submitted are concerned with the Gestapo. I refer to the German transcript (Session of 2 January 1946), where only police courts and Gestapo summary courts are mentioned.

The fact that the Police alone were competent is obvious from the documents submitted by the Prosecution. Document 654-PS repeats the contents of a preliminary discussion between Thierack and Himmler on their intention of turning over proceedings against Jews, Poles, Gypsies, Russians, and Ukrainians from the regular courts to the courts of the Reichsfuehrer SS. Another Prosecution Document, L-316, issued by the RSHA II on 5 November 1942, simply contains notice that such proceedings were to be transferred to the Police from the judicial authorities.

Criminal proceedings against Jews were, in fact, transferred to the Police from the judicial authorities, and I refer in this connection to my Document Number SD-56. With regard to proceedings against Poles, Gypsies, Russians, and Ukrainians, no instructions to that effect were given. This is confirmed by the statement of the witness Lammers before the Tribunal (Session of 9 April 1946).

The fact that in practice the SD had nothing to do with sentences pronounced against such persons appears from the letter from the President of the Court of Appeal and the Chief Public Prosecutor at Katowice of 3 December 1941, addressed to the Reich Minister of Justice. This report mentions that 350 members of an organization involved in high treason had been hanged by the Police following instructions given by the Chief of the Stapo office in Katowice.

I further refer to the answer to Question Number 5 in the affidavit by Mildner of 29 March 1946 (Session of 11 April 1946). Here Mildner stated that these punishments and executions were ordered by Himmler, the orders being transmitted, through Kaltenbrunner and Mueller, to the commandants of the concentration camps.

33

27 Aug. 46

On 1 August 1946 the witness Hoeppner testified before the Tribunal that it was not among the functions of the SD to set up summary courts. The affidavits by Schellenberg and Dittel (Affidavits SD-61 and 63) show that Aemter VI and VII were also not competent for the application of summary proceedings. Furthermore, covering the period from 1939 to 1945, I have submitted 209 affidavits for the RSHA, Amt III, and a number of regions within the Reich and in the occupied territory of Russia, Czechoslovakia, Italy, and Poland, which indicate that the SD was never in any way involved in summary proceedings for the purpose of convicting and executing subjects of occupied countries.

Retaliation against next of kin (Sippenhaftung). In substantiation of the allegation that the SD had executed or imprisoned in concentration camps persons related to individuals accused of crimes, the Prosecution have referred to Document L-37, Exhibit Number USA-506. From the reference number of this document: IV B c -- 5/44 GRS, it is quite clear that this matter was attended to by the Gestapo.

The next Prosecution Document, L-215, the original file on the deportation of Luxembourg nationals in 1944, clearly shows that the Gestapo dealt with the matter. I would point to the reference Number IV indicated on the various letters. This volume also contains numerous letters from the Stapo offices IV. The whole volume contains no letter indicating any participation of the SD. The witness Hoeppner stated on 1 August 1946 that the SD had nothing to do with retaliatory measures against next of kin.

I also refer to the affidavit by Fromm (SD-56) who testified that the SD, Amt III and VI, had nothing to do with the measures indicated in Prosecution Document L-37. Schellenberg and Dittel have also stated in their affidavits (SD-61 and 63) that Aemter VI and VII did not participate in retaliatory measures against next of kin. I also refer to 210 affidavits submitted by me, which show that the SD was not involved in any such measures in the territories formerly occupied by Germany of Russia, Italy, Czechoslovakia, Yugoslavia, and Poland between 1939 and 1945.

Shooting of prisoners in the Security Police and SD prison at Radom. In connection with this point, the Prosecution have submitted Document Number L-53, a letter by the commander of the security Police and the SD at Radom, dated 21 July 1944. The reference number of this letter also shows that this was purely a Gestapo affair. I also refer to the affidavit by Fromm (SD-56), who stated that the SD had no prisons in the Government General, that by Security Police and SD prisons the detention institutions of the Gestapo were meant, and that the matter treated in Document L-53 had not been dealt with by the SD. The fact that no SD prisons existed is also made clear by the testimony of Ehlich before the Commission.

I also refer to the affidavit by Dr. Laube, who testified that the SD never had or ran prisons or detention Institutions of its own. In particular, Dr. Laube has confirmed this in the case of France, and the statements of Dr. Laube, as far as they deal with France, are supported by the affidavit by Wollbrandt (SD-14). In the case of Minsk, this has been confirmed by Gerty Breiter (SD-69).

The affidavits by Schellenberg (SD-61) and Dittel (SD-63) show that Aemter VI and VII were not competent either. I have also submitted 189 affidavits for the entire territory of the Reich, Russia, Poland, and Czechoslovakia for the period covering 1939 to 1945, in which it is stated that by and to the SD no instructions were issued to murder prisoners in prisons in order to forestall their liberation by Allied troops, and that the SD never had a hand in such acts.

I have also submitted 22 collective affidavits covering the period between 1935 and 1945 which show, for the occupied territories of Russia, Eupen-Malmedy, Italy, Belgium, and Latvia, as well as for the territories of Brunswick, South Hanover, Aachen, West Prussia, East Prussia, Bavaria, the Saar Territory, the Palatinate, the Rhine Province, Wuerttemberg, Vienna, Upper Danube, Styria, the Tyrol, and the Sudetenland, that the SD at no time and in no place carried out arrests, and that there existed no SD prisons or prisoners.

Requisitioning by force. Document Number 1015-PS shows quite clearly that the Einsatzstab Rosenberg was competent for the requisitioning of public and private property in all occupied territories. The Prosecution have referred to the Documents R-101, 071-PS, and 2620-PS. Document R-101 shows that requisitioning was carried out and ordered by the Main Trustee Office "Ost." Document Number 2620-PS, concerning Einsatzgruppen A, B, C, D, and Einsatzkommandos,

34

27 Aug. 46

provides no indication of the fact that Aemter III or VI were in any way active in requisitioning public or private property.

Document 071-PS shows that requisitioning of works of art was to be conducted by the Police. "Requisitioning conducted by the Police" and "attention of the Police" are terms specifically mentioned. The document goes on to say that historical works and documents were demanded by the Police. Material is also mentioned which the Police justifiably requisitioned for purposes of their work. This document is simply another instance of the fact that the Police is meant by the term SD, for it says that requisitioning will be undertaken by the SD or the Police, although the text later shows that requisitioning was carried out exclusively by the Police. Thus, whenever this document mentions the SD, it presumably refers only to the Police. The evidence submitted by the Prosecution in itself already shows that the SD did not participate in the criminal acts alleged by the Prosecution. I also refer to the testimony of the witness Dr. Roessner. The witness Franz Straub and the witness Knochen have testified, for Belgium and France respectively, that requisitioning of art treasures was not carried out by the SD. I further refer to the affidavit by Klauke (Number SD-15) who testified that Amt III never requisitioned property of Jews, Communists, Free Masons, or other political opponents. Beyond this, Kutter, Number SD-20, stated under oath that the SD within the Reich had strict orders not to carry out any executive measures, which would have included requisitioning.

Schellenberg, in Number SD-61, and Dittel, in Number SD-63, have stated, as far as Aemter VI and VII are concerned, that neither of these two Aemter carried out any requisitioning of public or private property. I have 'also submitted 495 affidavits showing that during the period from 1934 to 1945 in the entire German territory as well as in the occupied territories of Alsace, France, Russia, Eupen-Malmedy, Poland, Italy, Lorraine, Luxembourg, and Czechoslovakia, the SD was never employed in requisitioning and distributing public or private property.

Third-degree interrogations. The SD was not competent to conduct third-degree interrogations. In trying to prove their allegation to that effect, the Prosecution have referred to Document 1531-PS. From the testimonies and the documents submitted by me it is clear that the SD had no executive powers and was, therefore, unable to conduct any interrogations, including those involving third-degree methods. The Prosecution Documents 1531-PS and L-89 show that the Stapo alone were competent to conduct third-degree interrogations. The decrees contained in Document 1531-PS and dated 26 October 1939 and 12 June 1942 bear the reference Number IV and are signed by Mueller. Aemter III, VI, and VII were not even informed of this letter. The letter from the commander of the Security Police and the SD for the district of Radom, dated 24 February 1944, was also sent by Section IV A. The regulations contained in this letter, referring to the application of third-degree methods, were addressed only to the Security Police in the Government General, as is clearly apparent from the text of the letter. The letter furthermore specifies that the matter and extent of third-degree interrogations is conferred on the Chiefs of Sections IV and V, the Stapo and the Criminal Police.

The witness Hoeppner has testified that the SD never conducted any interrogations, so that it could not do so with regard to third-degree methods either. The affidavit by Kutter, Number SD-20, shows that all SD members had strict orders to refrain from any executive interrogations within the territory of the Reich. As for France, I draw attention to the minutes on the interrogation of the witness Knochen, who declared that the SD in France was not entitled to conduct interrogations or questionings. Schellenberg and Dittel, by their Affidavits Numbers SD-61 and 63, have also stated that Aemter VI and VII were not authorized to carry out interrogations.

I have also submitted 76 collective affidavits covering the period from 1934 to 1945, showing that the SD did not conduct any interrogations, thus none involving third-degree methods either, within the entire territory of the Reich, Poland, Czechoslovakia, Yugoslavia, and Russia.

THE PRESIDENT: Can you tell the Tribunal what, according to your contention, the SD did in the concentration camps?

DR. GAWLIK: The SD had nothing to do with concentration camps, My Lord. One must differentiate between two facts: assign-

35

27 Aug. 46

ment to concentration camps by means of a protective custody order; the protective custody order was always issued by the Gestapo. The SD was not competent for that. And, secondly, the administration of concentration camps: concentration camps were under the jurisdiction of the SS Economic and Administrative Main Office, Obergruppenfuehrer Pohl. This was an independent organization which operated alongside the RSHA. Thus, if the Gestapo issued a protective custody order, then the detainee came under the jurisdiction of the SS Economic and Administrative Main Office. The SS Economic and Administrative Main Office was directly under Himmler, just as was the RSHA.

THE PRESIDENT: So that you say that the RSHA and Pohl's organization and the Einsatzgruppen were all three entirely separate organizations under Himmler? Is that right?

DR. GAWLIK: Yes.

THE PRESIDENT: What name was given to Pohl's organization?

DR. GAWLIK: Economic and Administrative Main Office.

THE PRESIDENT: Economic and what?

DR. GAWLIK: Economic and Administrative Main Office. The chain of command in the concentration camps, My Lord, was Himmler down to Pohl, and then to the commandants of the concentration camps.

THE PRESIDENT: And do you say that the Economic and Administrative Main Office employed no SS, or SD, or Gestapo, or Sipo?

DR. GAWLIK: No SD men were working in the Economic and Administrative Main Office, at least no SD men from Amt III; neither from Amt III nor from Amt VI. As far as I am informed, there were also a few Gestapo men..

THE PRESIDENT: Didn't any men work with the "SD" on their arms in concentration camps?

DR. GAWLIK: That I cannot say for certain, My Lord. I believe so; I cannot say.

THE PRESIDENT: You will recollect that there was a good deal of evidence which indicates that SD men were working in concentration camps; and the Tribunal would like to know what your explanation of that evidence is.

DR. GAWLIK: I can only recollect, My Lord, what the witness Milch said; as far as I can remember he said the commandant was an SD man; but that must be an error, because Aemter III and VI had nothing to do with this. It may be that these men in the concentration camps belonged to the SS special formation "SD," but I

36

27 Aug. 46

cannot answer that question with any certainty, Your Lordship. I can only...

THE PRESIDENT: What was this special formation of the SS which was called SD?

DR. GAWLIK: They were all members of the RSHA, of all seven offices, Amt I; Amt II; Amt III, SD Inland; Amt IV, Gestapo; Amt V, Kripo; Amt VI, Foreign Intelligence Service; and Amt VII. Those members who were members of the SS or candidates for membership in the SS were united under the SS formation SD, so that they did not need to do service in the local units of the SS.

THE PRESIDENT: As far as I can understand what you say, you are saying that in the branches of the RSHA all SS were called SD?

DR. GAWLIK: The members, as far as they were members of the SS -- for instance, if a Gestapo employee was a member of the SS, then he belonged to the SS special formation SD.

THE PRESIDENT: Go on, Dr. Gawlik.

DR. GAWLIK: Your Lordship, I should like to say the following with reference to this subject: it is something which refers to service abroad. In the eastern territories all members of the Security Police, even if they were not members of the SS, wore this SS uniform with the SD badge.

And now I come to crimes against humanity, persecution of Jews. The prosecution of individuals for crimes against humanity was unknown in international law until now. It was merely admitted that if a state violated any principle of humanity, other states had a right to intervention. As an example I mention the intervention of Britain, France, and Russia against Turkey in 1827; against the Balkan States in 1878; and the intervention brought about by the atrocities committed in Armenia and Crete in 1891 and 1896 (Fenwick: International Law, 1924, Page 154 following).

This right to intervention for crimes against humanity was not generally recognized. Oppenheim, International Law, Volume 1, Pages 229-237, for instance, considers an intervention to end religious persecution and continued cruelty in war, and peace in the interest of humanity, as questionable. According to Oppenheim it should be a rule that interventions in the interest of humanity be admissible; they must, however, be of a collective nature. In accordance with the general fundamental rule of international law that only the states are subject to international law, this intervention is directed only against the state in which crimes against humanity have been committed.

The Charter introduces an entirely new element by decreeing the prosecution of individuals for crimes against humanity. That is probably why, according to Article 6(c) of the Charter, persecution

37

27 Aug. 46

for political, racial, or religious reasons is not in itself a crime. It is, on the contrary, necessary that this persecution be carried out in executing a crime or in connection with a crime for which this Tribunal is competent. It is therefore not sufficient that the Prosecution alleges, on Page 53 of the trial brief against the Gestapo and SD, that it had been one of the tasks of the SD to keep the Gestapo informed about the Jews. On the contrary, it is necessary to prove for what purpose this information was rendered.

The witnesses Wisliceny and Dr. Ehlich have been examined before the Commission on the work of the SD in Jewish affairs. Wisliceny declared that Amt III of the RSHA had no department for Jewish questions. From 1936 until 1939 there was in the SD, in Central Department II/1, a department for Jewish questions. This department for Jewish questions allegedly did not have the task of preparing the extermination of the Jews.

Dr. Ehlich furthermore testified that in Amt III no department concerned itself with the Jewish question, and especially not Department III B 3. As a result of the regulations defining the tasks of Amt III and Amt IV, it had been determined that all Jewish questions were only to be dealt with by Amt IV.

I refer further to Affidavits SD-27, SD-16, and SD-17. Schellenberg, SD-61, and Dittel, SD-63 have stated with regard to Aemter VI and VII that these offices had nothing to do with the persecution of the Jews either.

Furthermore, there are 259 collective statements available from former SD members for the entire area of the Reich, and for the time from 1933 until 1945.

THE PRESIDENT: Have any of these affidavits to which you are referring been translated?

DR. GAWLIK: No, My Lord, only the summary affidavit has been translated.

THE PRESIDENT: Well, some of your affidavits have been translated, have they not?

DR. GAWLIK: Some of them, My Lord, yes, but not those 259; they have not been translated, My Lord. They are contained in my summary, SD-70.

For their allegation that the SD had participated in the persecution of Jews in 1938 the Prosecution have submitted three teletypes dealing with anti-Semitic measures, of 10 November 1938, as Document 3051-PS. In this connection I draw attention to the affidavits I have submitted as Numbers SD-27, 16, and 53, according to which the SD took no part whatever in the pogrom of November 1938. 1 also refer to 107 affidavits for the entire territory of the Reich, stating that the SD had not participated in the pogrom.

Although the affidavit Gestapo 14 mentions that members of the SD office Magdeburg were arrested, punished, and sent to a concentration camp for participation in the outrages, this only shows, firstly, that the SD had no orders to take part in the pogrom, and secondly, that wherever this did occur, the SD members involved were punished.

38

27 Aug. 46

The evidence has not shown that the SD Aemter III and VI of the RSHA participated in the extermination of the millions of Jews. All Jewish affairs were dealt with by Amt IV, by Eichmann's section. Eichmann belonged to Amt IV and was the head of Section IV B 4. This is shown by the organizational plans of the RSHA of I January 1941 and 1 October 1942, Document L-185, and Document L-219 submitted by the Prosecution.

The chain of command for the mass murder of Jews was: Hitler, Himmler, Mueller, Eichmann. Not one of the witnesses has indicated that Aemter III, VI, and VII, or any of the local branches of these offices co-operated in the extermination of Jews. In this connection I refer in particular to the testimony of Wisliceny, according to which there was no connection between the department of Eichmann and Aemter III, VI, and VII, and further to the evidence of Dr. Hoffmann. Hoffmann stated that Amt IV was competent for deportations, and that Eichmann was responsible for the final solution of the Jewish question.

In the occupied territories all Jewish affairs were also handled by Amt IV, the Eichmann department. The initial "IV J" on Document RF-1210, submitted by the Prosecution, shows that a department of Amt IV dealt with the Jewish questions in France. This is confirmed by the testimony of the witness Knochen and by the Laube Affidavit, SD-54, which I submitted. They show that Hauptsturmfuehrer Dannecker, who was sent to France by Eichmann, also belonged to Amt IV and received his instructions directly from Eichmann himself. Thus, no connection existed between Aemter III and VI and Eichmann's department.

Referring to Denmark and Holland, the witness Dr. Hoffmann testified that the deportation of Jews from these countries was carried out solely by the Eichmann agency. Moreover, on 3 January 1946, Wisliceny made an extensive statement on this subject before the Tribunal, saying that the deportation of Jews in the Balkan countries was also carried out by the Eichmann department.

The Trial has in no way established that the SD Aemter III, VI, or VII in any way supported the Eichmann agency.

THE PRESIDENT: One moment. Then that is another organization which is directly responsible to Himmler, is it, the Eichmann department? You gave us the RSHA, the Pohl organization, and another organization which I forget for the moment -- oh, the Einsatzgruppen; that was three organizations which were entirely outside the SS or the SD or the SA, and now you have got another one. That is the Eichmann organization.

DR. GAWLIK: The legal position is not the same as in those three organizations which I cited. Eichmann was really in Amt IV, but probably it would be better if my colleague, Mr. Merkel, were

39

27 Aug. 46

to answer that question. I do not want to encroach on the material of my colleague Merkel, who represents the Gestapo. Eichmann had an office in Amt IV, the Gestapo.

THE PRESIDENT: Go on.

DR. GAWLIK: It is true, however, that Eichmann and a number of other persons who worked in his department in Amt IV were formerly employed in the SD. In this connection, Wisliceny has testified before the Tribunal that these persons were in part assigned to Amt IV, and in part transferred there. They received their orders exclusively from Amt IV. The witness Hoffmann has declared that Eichmann was transferred from the SD to the Gestapo.

The fact that persons had worked in the SD before they worked in Eichmann's section is in no way sufficient to declare the SD a criminal organization. These persons were completely eliminated from the activity of the SD when they were taken over by Amt IV, or when they were assigned to Amt IV.

The decisive question is whether the extermination of the Jews was one of the aims and duties of Aemter III, VI, or VII. The fact alone that these people resigned their activity in the SD and were taken over into Amt IV proves incontestably that this activity was not among the aims and duties of the SD. Moreover, the majority of the members of Aemter III, VI, and VII did not know that individual persons who had formerly been employed in the SD were now occupied in Amt IV with the final solution of the Jewish question.

I now come to the persecution of the Churches. The Prosecution has asserted in this connection that the Gestapo and the SD had been the main departments for the persecution of the Churches; that the SD had pursued secret ends with deceptive maneuvers against the Church; that the SD had collaborated with the Gestapo, that the SD had dealt with the opposition of the Church against the Nazi State; that the persecution of the Church had been one of the fundamental purposes of the SD.

I am of the opinion that these general allegations do not suffice to declare the SD as criminal for persecution of the Church. Article 6(c) of the Charter does not speak of persecution of the Churches but of persecution for religious reasons. The documents submitted by the Prosecution, which merely contain the general allegation that the Churches had been persecuted, therefore do not suffice. On the contrary, it should have been shown that this persecution was carried out for religious reasons.

The concept "persecution" will, moreover, need to be explained. Not every measure can be understood as "persecution," which was undertaken against members of denominations by the State. Here, rather, we have to start from the concept of human rights. The

40

27 Aug. 46

Charter does not define what is to be understood as violation of human rights from a religious viewpoint.

A number of writers on international law, for instance, Bluntschli, Martens, Bonfils, and others, take this to be the right for existence; the right for protection of honor, of life, of health, of liberty, of property, and of religious freedom. I refer in this connection to Oppenheim's International Law, Volume I, Page 461. Only a violation of this right ...

THE PRESIDENT: Is it your contention that Germany had the right, outside the territory of the Reich, to treat the Church which existed there in any way they thought right? Take, for instance, in Russia; in the Soviet Union. Is it your contention that there Germany could treat the Church and Church property in any way they thought right, if that is not in accordance with international law?

DR. GAWLIK: You have to differentiate between conditions inside and conditions outside of Germany. Outside of Germany the general principles of international law applied. My statements deal with conditions in Germany. The SD has also been accused by the Prosecution, in Document 1815-PS, which is a document from Aachen, that it had persecuted the Churches inside Germany. There, in my opinion, you have to draw a distinct dividing line, and what I had been saying referred only to conditions inside Germany. Only a violation of this right for religious reasons will therefore fall under this penal code.

The evidence on this point of the Indictment has established the following: The witness Roessner has testified that since the existence of Amt III, no Church questions, but only general questions of religious life, were dealt with in such a manner that the religious tendencies, wishes, and preoccupations of all sections of the population were registered, without assessing their confessional adherence in the sense of a persecution of the Church, or causing or supporting police measures. The witness has also stated, in particular, that the SD carried on no sham proceedings in order to persecute the Church. The witness Dr. Best (a witness for the Gestapo) has testified that any police intervention in individual Church cases was the task of the Stapo. According to the statements of the witness Roessner, the decree of 12 November 1941, which ordered that Amt IV should take over entirely all Church affairs from Amt III, was but the formal confirmation of an already existing state of affairs.

For the period before 1939 I refer to the affidavit of Fromm (Affidavit SD-19), and particularly to SD-55, by Theo Gahmann. I draw your attention to the fact that the English Document Book H, which deals with the persecution of the Churches, contains no evidence against the SD. Documents D-75, D-101, D-145, 848-PS, 1164-PS, 1481-PS, and 1521-PS contained in this document book were purely police affairs.

41

27 Aug. 46

THE PRESIDENT: Go on.

Dr. Gawlik: The Prosecution have submitted Document 1815-PS. First of all it should be noted that this simply deals with a local occurrence from the area of the Stapo office in Aachen. All grounds are lacking for any assumption that these happenings can be generalized to apply to the entire Reich. All the facts contained in this letter emanate from the local Stapo office or from Amt IV in Berlin. The file contains no letter addressed to or by the SD. This fact in itself contradicts the theory of co-operation between the SD and the Gestapo, for in that case this large file would have had to have contained some documents showing orders or instructions for the SD. Individual cases are not referred to at all in the document. From the fact that certain SD members were transferred to Amt IV to deal with Church matters, the strict separation of tasks is clearly apparent. The decree of 12 March 1941, contained in Document 1815-PS, according to which, after the SD had transferred Church matters to the Gestapo, numerous Stapo offices were ordered to start on the organization of a suitable intelligence system, shows quite clearly that the SD, Amt III, was not permitted to deal with Church matters, that the intelligence service for police matters, as turned over from the SD to the Gestapo, was useless from the point of view of persecution of the Churches, and that neither before nor after this time did the SD ever give assistance to the Gestapo. I have also submitted 259 affidavits by SD members from the entire territory of the Reich and covering the period from 1935 to 1945, showing that the SD did not persecute any Churches.

I believe I have shown that a collective sentencing of all members of Aemter III and VI, which is the intention of the Prosecution, would not do justice to the tasks and activities of Aemter III and VI.

If, however, the Tribunal should pass sentence on the SD against my explanations, then the number of persons affected by this decision ought to be strictly limited, especially in view of Law Number 10. The general designation "SD" should not suffice, because of the manifold meaning of this word.

It will have to be clarified whether the decision affects:

1. Only members of Aemter III and VI, which were not founded until September 1939, or also members of Central Department II/I of the SD Main Office;

2. only the full-time members or also the honorary members;

3. from among the honorary members, only the collaborators, or also the Vertrauensmaenner (confidential agents);

4. from among the Vertrauensmaenner, only the permanent employees, or also those who furnished occasional reports;

High Tribunal, your decision will be a milestone in the history of law, but it could also be a milestone in the history of humanity. The striving of the people is toward peace. Influential politicians as well as representatives of legal science agree that this wish of humanity can only be fulfilled by an independent jurisdiction unbounded by state sovereignty.

James Brown Scott, the President of the American Institute for International Law, established in a speech, delivered in the year

42

27 Aug. 46

1926, that the history of mankind is but the history of the individual upon a larger scale. In the history of the individual the right to take justice into one's own hands has given way to an arbitration by the parties concerned ...

THE PRESIDENT: Go on.

DR. GAWLIK: ... and out of this developed the juridical procedure of nominating judges and ensuring the execution of their judgments.

Violence is violence; whether between armed individuals or entire peoples, who in the case of war have at their disposal the last resources of their governments.

Today the peoples in their development, as compared with the development of the individual, are in a state of transit from the arbitration system to a regular juridical system. Nature repeats herself from day to day, from generation to generation, whether in individuals or in such groups of individuals as we call state or nation. The international arbitration system will be the basis for the regular juridical system of the United Nations, which is unbounded by state sovereignty, just as among the peoples the regular juridical system has developed out of the arbitration system.

We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in world history.

THE PRESIDENT: Dr. Gawlik, I have before me the English translation of your speech, and on Page 113 of the speech there appears to be a reference, in the paragraph which has Number 1, to the Main Office of the SD. I would like to know, for the benefit of the Tribunal, what you mean by the Main Office of the SD. Do your pages correspond?

DR. GAWLIK: Yes, My Lord. The SD Main Office existed until 1939. It. had the following departments: II-1 "Gegnerforschung" (Enemy Investigation), and when the RSHA was founded that department was transferred to the Gestapo.

THE PRESIDENT: The Main Office of the SD was transferred to the Gestapo?

DR. GAWLIK: No, not the entire main office, My Lord. Until 1939 there was an SD Main Office, and in September 1939 the RSHA was founded. The RSHA only existed since September 1939. Before that there was the SD Main Office, which had various subdepartments, and one department of that SD Main Office was transferred to the Gestapo when the RSHA was founded. That department was called II-1.

43

27 Aug. 46

THE PRESIDENT: Did the Main Office of the SD cease to exist in September 1939?

DR. GAWLIK: Yes, it then ceased to exist. And Department 11-2 then became Amt III of the RSHA.

THE PRESIDENT: You are saying, are you not, that II-I, which was a branch of the Main Office of the SD, was transferred to the RSHA and became Amt II in the RSHA?

DR. GAWLIK: No, My Lord, Amt II-1 came into Department IV of the RSHA, that is, the Gestapo. Department II-2 became Amt III in the RSHA.

THE PRESIDENT: At any rate, the SD Main Office ceased to exist, and all passed into the various Aemter of the RSHA?

DR. GAWLIK: Yes.

THE PRESIDENT: Yes.

DR. GAWLIK: We are at the dawn of this era in the history of peoples, an era which is the end of belligerent struggles, and would thus fulfill the deep wish of all the peoples. The International Military Tribunal could fulfill this task in the history of the world if by its decision it were to indicate that it intends to be the Court above all nations, which is the aim of politicians and of representatives of legal science. The collective condemnation of the members of the organizations, however, is not the way to fulfill this aim because this would punish the innocent as well. This Tribunal can only be built up on the principle: no punishment without the establishment of the guilt of the individual.

THE PRESIDENT: I do not know that the Tribunal has laid down any exact order, and I am not sure how far the translations of the various speeches have now gone, but perhaps counsel for the organizations know how far their speeches have been translated and therefore which it is most convenient to take now.

Is it you, Dr. Laternser?

DR. LATERNSER: Yes, Mr. President.

THE PRESIDENT: We will take the High Command now, then.

DR. LATERNSER: So far as I know, the English translation of my final plea is completed. The French translation, apparently, is mostly completed; I have just seen one copy of it here and the Russian translation -- I do not know about that.

THE PRESIDENT: Very well.

Yes, Dr. Laternser.

DR. LATERNSER: My Lord, Gentlemen of the Tribunal:

It has happened more than once in the history of nations that After a war the military leaders of the defeated party were brought

44

27 Aug. 46

to trial. If the defeated war leaders or generals could not be reproached with ineptitude or negligence of their military duties, they were suspected of treason, of pursuing political aims, or they were accused of infringing the rules of warfare or the limitations of their military powers.

There is one feature, however, which must be noted: as a rule, trials were conducted and verdicts rendered by their own state, and not by the enemy victors. To find examples for the latter case, one must go back into history by more than 2,000 years. The Romans strangled their enemy Jugurtha in jail, and persecuted Hannibal with their vengeance until they were able to force the cup of poison into his hands at the court of his host. In more recent history, there is the sole example of Napoleon I, who was banished by the victorious powers to St. Helena, where he died; but he was not taken to account by the victors because he had served his country as a French general, but because he was the Emperor of the French, and consequently the political head of his country.

Hitler, who was the head of the German Reich, and the Supreme Commander of the Armed Forces, has eluded judicial responsibility by his death. Since he can no longer be dealt with, the Prosecution have taken the highest military commanders instead of the Supreme Commander and head of the State, made them summarily also political leaders, and are attempting in this way to render them responsible.

This method is indeed unique and without precedent in the history of nations, and may well be contemplated with peculiar feelings by all soldiers of the world.

If one thing stands out clearly from the collection of evidence--and I shall have to deal with this in detail later on--it is the fact that the German military leaders did not dominate their country and did not drive it into the war, that they were not politicians, but exclusively, and perhaps even too exclusively, soldiers--which is the tragic part. Had they been politicians, Germany would not have fallen into this abyss. If we keep this clearly in our minds, it is obvious that these men are in fact facing trial before this Court only, because they served their country as soldiers.

If the Prosecutor, Colonel Taylor, argues that Hitler could not have waged his wars without the assistance of the Armed Forces, that argument cannot be invalidated. Nobody has ever been able to wage a war without soldiers. However, what Carlyle says is true for the German military leaders as for all soldiers:

"If a man becomes a soldier, his soul and his body thereby become the property of his commanding officer. He is not allowed to decide for himself whether the cause for which he

45

27 Aug. 46

fights is good or bad. His enemies are selected for him, and not by him. It is his duty to obey and to ask no questions."

If the German military leaders are today indicted before this Court as an alleged "criminal organization," this indictment does not only apply to them, but is in fact directed--however strongly it may be desired to deny this publicly--at the soldiers in general, or at least at the military leaders as a class.

By indicting the military leader--who, obeying the orders of his government, has fulfilled his military duties--because the Prosecution declares the action of his government to be illegal and represents him as a partner to such action of the government, the Prosecution places upon him the obligation to examine the legality of his country's policy, and raises him to the position of a judge called upon to give a verdict on the policy of his state.

It cannot be my task to present the consequences of such a mental revolution for the soldiers of the world. I can only ask the Tribunal to consider, with particular care and in full consciousness of its peculiar responsibility, these special circumstances when it applies the principles of the Charter to the special position which the soldier occupies both in fact and in law. Whenever a noble judge, after careful self-examination, comes to the conclusion that all sorts of reasons might tempt him to be prejudiced against a defendant, he will feel an obligation to weigh the evidence with special care, and to ask himself again and again whether he is guided by a genuine appreciation of the facts, or rather by a sentimental attitude.

Now in this case, where one party is passing judgment on the other -- the Prosecution calls this modestly a flaw -- where the judges come exclusively from nations against whom the defendants fought as soldiers, in this case, I say, the judge is required to do something that is humanly almost impossible, namely to free himself, in the interests of the future of mankind, from the feelings engendered by the struggle which has just come to an end, and from the passions which were whipped up in its course. I conduct the defense in the expectation that, as regards the German military leaders whom I represent, this Tribunal will not exercise retaliation, but will in truth render justice in the highest meaning of the term.

The whole Indictment is based on the attempt to include 129 high-ranking officers of the German Armed Forces, who occupied certain service positions in the military hierarchy, under the double designation "General Staff and OKW" in a "group" both in law and in fact.

Before dealing with the legal aspects of the alleged "group character," I must present some observations on the term "General Staff" and "High Command of the Armed Forces" (OKW).

46

27 Aug. 46

There never existed during Hitler's time a General Staff for the whole Armed Forces, as the Prosecution obviously seems to think, along the lines of the "Great General Staff" of the former Imperial Army. The Navy neither had an Admiral Staff nor Admiral Staff officers. The "Naval Operations Staff" set up in the autumn of 1938 was in no way similar to a General Staff. The Navy only participated in the functions of the Army, and of the Armed Forces in general, to the extent to which operational co-operation was required in individual cases.

The Air Force had a General Staff of its own, consisting of the Chief of the General Staff and the General Staff officers. Its functions, however, were sharply distinguished from those of the General Staff of the Army and were limited to the Air Force's own sphere of activity. Co-operation between the two existed only in the case of joint operations.

Nor was the General Staff of the Army itself, as the Prosecution seems to think, a central agency, but it consisted likewise merely of the Chief of the General Staff and of the General Staff officers.

How little the position of this General Staff corresponds to the picture drawn by the Prosecution becomes apparent from the fact that its first Chief of the General Staff, General Beck, was only twice received by Hitler during his whole term of office from 1935 to 1938.

The "General Staffs" of the Army and of the Air Force, which actually existed, are not in the least concerned with the Indictment, for the indicted 129 officers did not represent these General Staffs as an entity; out of the whole group, the sole members of these General Staffs were General Jodl, as Chief of the Armed Forces Operations Staff (Wehrmachtfuehrungsstab), the Deputy Chief of this staff, and the Chiefs of the General Staffs of the Army and the Air Force. All other generals were not General Staff officers, but troop commanders. A great many of them, namely, 49 out of the 129 officers, were not even members of the General Staff at an earlier date. If the Prosecution nevertheless give this group of persons the name of "General Staff," then this amounts to the same thing as if in the Roman Catholic Church one were to indict the Order of the Jesuits while really meaning the Cardinals.

The term "General Staff," therefore, does not cover the 129 indicted officers, but all General Staff officers, who are not in the least concerned with the Indictment. It is misleading and arbitrary. A verdict based on the designation "General Staff" would be directed against an institution the members of which are not indicted.

The "High Command of the Armed Forces" (OKW) had even less the importance of an independent and central leading agency.

47

27 Aug. 46

The proceedings before this Court have clearly shown that this was only Hitler's military operations staff, and that it had no independent powers of its own to give orders. Only four out of the 129 persons ever belonged to the High Command of the Armed Forces. None of the others are covered by this designation.

The double designation "General Staff and OKW" does not improve matters either. What is here called "General Staff and OKW" actually represents all the officers who occupied the highest positions in the course of this war. They were nothing but the heads of the military hierarchy, sharply divided among themselves, according to the three service branches. The only link between these high-ranking officers was their relation within the military hierarchy, their common professional ethics, and the spirit of comradeship, as is the case in all armies.

The term "General Staff and OKW" is therefore an accumulation of wrong designations, arbitrarily selected in order to pretend that there existed a combination of something that was never combined, and is not even capable of being combined. As regards the 129 officers, neither the name "General Staff" nor the designation "OKW," nor the combination of these two designations "General Staff and OKW," produces a definition covering the functions or the persons concerned.

The erroneous designation in itself might perhaps be no obstacle to a condemnation, if it could be replaced by a more fitting name. The term often used by the Prosecution, "highest military leaders," or the designation "holders of the highest ranks in the German Armed Forces," would substantially cover the total number of the indicted officers more adequately than the erroneous term "General Staff and OKW." Both designations, however, would only be a loose definition and constitute a clear indication of the fact that there existed a multiplicity of persons, but could never be considered as proof of the existence of any kind of combination of these persons.

There are no other terms possessing the value of proof; an the contrary, the very fact that one must search and search again even to find a term and that one still only finds an expression to cover 129 individual persons but that no organized combination can be shown, forces us to conclude that a legal or factual setup, call it what one will, never existed.

Although these wrong designations and the impossibility of finding a correct term constitute in themselves already strong arguments against the assumption of a "group or organization," it is still necessary to deal with the legal conditions which must be fulfilled in order to be able to consider the indicted 129 officers at all as a "group" or "organization," although it might be nameless.

48

27 Aug. 46

Since the Charter does not define the terms "group" and "organization," it is necessary for me to say a word or two on the definition of these terms.

In the first place, there is the question as to whether the term "group" is something different from the term "organization," or whether both terms are identical. As the Charter uses both terms side by side, even in the same sentence, it must be assumed that these two designations were deliberately chosen in order to emphasize at least a difference in fact.

Article 9 of the Charter gives rise to justified doubts as to whether it was actually intended to characterize two different phenomena, because under this Article the Tribunal is only authorized to declare the groups and organizations to be "criminal organizations." Therefore, the Tribunal cannot declare a "group" to be a "criminal organization" if it does not possess the corresponding characteristics, that is to say, if it is not itself also an organization. In this case, the quality of group would be legally irrelevant as far as Article 9 is concerned; an unorganized group could not be declared to be criminal.

Nevertheless, the question of the "formation of a group" must be re-examined. As regards the definition, it must be based, according to the American Chief Prosecutor, on the common usage of the language. That means: The main characteristic of the existence of a "group" of people is the local co-existence of a multiplicity of persons. One speaks of a "group picture" if several persons are shown side by side, of a group of "curious onlookers" if a number of people are watching side by side the same event. From this it follows that another condition which must be fulfilled to constitute a "group" is the simultaneous co-existence of persons. As these two characteristics are lacking in the case of the group of high-ranking generals and admirals, as defined by the Prosecution -- these officers who belong to the most different agencies were never, neither before nor during the war, locally collected, nor simultaneously and jointly active-there can be no question of a "group" either in the linguistic or in the factual meaning of the word.

If this circle of officers cannot be considered as a "group" because the necessary conditions for the formation of the "group" are lacking, the question remains as to whether it was a "group similar to an organization," or even an "organization." If we take the common usage of the language again as our starting point, we find that the main characteristic of an organization is the fact of "its being organized." However, a combination of people is only "organized" if it possesses organs of its own, acting on behalf of the organization, while its creation, its powers, and its activities are based on some sort of a constitution. Furthermore this association -- irrespective of whether it be founded in law or may only

49

27 Aug. 46

have an existence based on sociological fact--must be able to develop through its own organs a will of its own. An organized association must be, as the prosecutor himself admits, an "entity."

It is true that this "entity" need not find expression in so concrete a form that it appears as a subject in law, but it must at least outwardly show the characteristics just mentioned, and must constitute as to its substance a deliberately created voluntary association of several persons for the pursuit of common purposes.

The main characteristic of an "organization," according to this definition, is the "inner purpose" of the association. The external form is not alone decisive for its existence; on the contrary, an associated multiplicity of persons does not become an "organization" unless its inner purpose is that of the pursuit of common aims.

As regards the circle of officers concerned, the conditions are completely lacking both in law and in fact, which might justify the assumption that they constitute a "group similar to an organization," or an "organization." Even the most important condition, namely that of voluntary membership, is not fulfilled. These officers did not occupy their positions voluntarily, nor did they remain in these positions voluntarily. But that the condition of voluntary membership must be fulfilled has already been indicated by the Tribunal in its definition of the points of proof considered relevant, and the Prosecution, too, have called these conditions essential. It is true that the military leaders voluntarily chose the military profession. They did join the Reichswehr voluntarily in 1920, and in so doing, had to commit themselves for 25 years under a contract. However, they were promoted to the posts which come under the Indictment exclusively by reason of their ability, and without any initiative of their own. By virtue of the commitment entered into they could not ask to be retired as long as they were capable of carrying out their duties, certainly not during the war when resignation was explicitly prohibited to them. These events and facts require no proof, as they are the same or similar in all the armies in the world. They are based upon the military power to give orders on the one hand, and the military obligation to obey on the other.

Thus it is proved that the "General Staff and OKW" do not in any way constitute an association of persons based upon voluntary membership. But it also cannot be assumed that we are here concerned with an "organization" because the further condition, namely, the consciousness of these officers that they had joined an association at the moment of their appointment, was lacking.

Any citizen who voluntarily joins an organization knows, at least, that this organization exists and that he is joining it. But these officers were assigned without being consulted to the posts

50

27 Aug. 46

which only now are arbitrarily designated as a group or organization by the Prosecution. How could they, in these circumstances, have been aware, at the time of their appointment to the various service positions, that this appointment was equivalent to acquiring membership in any kind of association?

The argument of the Prosecution that at an earlier date a similar association of General Staff officers existed in what was called the "Schlieffen Society," is irrelevant in connection with the appreciation of the legal aspect with which we are here concerned. The "Schlieffen Society," which only met once a year for a lecture and a report, was exclusively concerned with cultivating the spirit of comradeship between the former General Staff officers and those on active service. There was not the slightest reason for the German and Austrian officers on active service, who originated from the three service branches, to set up a similar association during the war.

The foundation of a political community was even more out of the question in view of the traditionally unpolitical attitude of the whole German officer corps. The idea that a criminal purpose might have caused an association to form, as the Prosecution would like us to believe, is quite absurd.

If, therefore, these officers neither took up their posts voluntarily nor had the consciousness of joining an association, or of assembling in an organization, the sole fact that they occupied the posts covered by the Indictment cannot, in itself, prove that we are concerned with an "organization."

There are also the following facts which are opposed to a deliberate association and the existence of an organization. A large number of the officers concerned had never met personally at all. Only some of these officers have ever had contact with each other in connection with their official duties.

All inner homogeneity was lacking in this circle of high-ranking officers, who are alleged to be so unanimous in their opinions. This Trial has more than anything else before brought out very clearly the divergencies of opinion and inner oppositions existing among these high-ranking military leaders.

THE PRESIDENT: We will break off there for a recess.

[A recess was taken until 1400 hours.]

51

27 Aug. 46

Afternoon Session

DR. LATERNSER: The absurdity of this "group experiment," however, is best illustrated by the inclusion of Himmler in the circle of these Army officers. It is a well-known fact that Himmler was the deadly enemy of the Army, and. that the leaders of the Armed Forces and those of the Waffen-SS had little association with each other except that occasioned by purely military operations at the front line. It is precisely the inclusion of Himmler and of some of the leaders of the Waffen-SS which constitutes a convincing proof against the existence of this really impossible institution.

Nor does the time element permit the assumption that we are concerned with an "organization." The military leaders were no all at their service posts simultaneously, but in office at such widely separated periods that only a fraction of them could have been members at the same time. This is shown most clearly by the graph submitted to the Tribunal. According to these graphs there were only seven generals in 1938, only 22 generals on 7 September 1939, only 31 generals on 22 June 1941, and only 52 generals in November 1944, that is to say, much less than half of the indicted officer were in, the positions covered by the Indictment.

There existed no uniform will on the part of all these 12 officers. Every one of them, it is true, was subjected to one single will above his own, but only in a military respect, not as regard an existing organized association. How could these officers at any time appoint organs of their own for the expression of their will? The constant change in the positions of those concerned would have excluded any such possibility. Only nine generals and admirals occupied positions for the entire duration of the war which would allow them to be included among the so-called "group." On February 1938 only six generals held such positions; 21 generals held positions coming under the so-called "group" for periods of only 2 to 2 1/2 years; 61 officers are counted as belonging to the "group" although they did not hold such positions for even a year.

Just as the functionaries of a "group" were lacking, so also was a constitution or a statute governing the joining and withdrawal of members, the authority and the activity of its functionaries, their election or appointment. There existed not a single written or -oral provision dealing with any kind of a community. The Prosecution were, therefore, unable to submit even a single 'document proving the existence of a "group" or an "organization."

The affidavits submitted to the Tribunal by the Prosecution, which were to prove, on the strength of the statements made by

52

27 Aug. 46

Generals Von Brauchitsch, Halder, and Blaskowitz, that a "group" did exist, have proved to be quite unsuitable for this purpose as a result of the corrections which were subsequently made. The hearings of Field Marshal Von Brauchitsch before this Court, and of General Halder before the Commission, have shown that the identical affidavits of both generals constituted a condensed version of several interviews, drawn up by the interrogating officer and submitted to them for signature, and that those written statements were unintelligible in all the points which are of decisive importance in this question, without the additional explanations given by the witnesses before they signed these statements. Consequently, the interpretation given to those statements by the Prosecution is wrong. The corrections which have now been made have not been refuted and have thus deprived the Prosecution of its main argument and of every proof in favor of the existence of a "group."

The same applies to the affidavit of General Blaskowitz, which was submitted to the Tribunal in the course of these proceedings. They have also been rectified and completed by Affidavit Number 55. Thus, the conclusions drawn by the Prosecution have also in this case proved to be wrong. Nor has a joint action which could be regarded as the expression of the collective will of the organization been proved in any of the cases under consideration.

It is quite impossible to bring such proof since this circle of officers had neither by law nor by nature the capacity to negotiate, and could not therefore have exercised any joint action as an organization. Nor did these officers hold any meetings from which the existence of any kind of an organization might be inferred. The Prosecution are quite wrong if they believe that as a proof of their theory they can cite military discussions with Hitler, and a number of meetings of field commanders.

When from time to time meetings of the Supreme Commander of the Army were held with the commanders-in-chief of the army groups, or armies, this was always done for purely military purposes, and the discussions were exclusively concerned with military questions. The assignment of the commanders-in-chief to widely dispersed theaters of operations and their permanent and complete absorption by their military duties made it impossible from the very outset for them to meet for reasons other than purely military ones. For the same reason not even the highest military commanders maintained close contact with each other, particularly since the frequently mentioned Fuehrer Order Number 1 limited the knowledge of each one of these commanders-in-chief to his own sphere, whatever his position might be. Since the three service branches, apart from their operational co-operation in individual

53

27 Aug. 46

cases, existed side by side in complete independence, joint discussions of the commanders from the various service branches were, for this very reason, held only on very rare occasions.

Although the Prosecution have referred to an affidavit by General Blaskowitz in order to prove the contrary, the latter's supplementary affidavit, Number 55, has shown that he was misunderstood on this point too. There have never been frequent meetings of the high-ranking generals in the sense implied by the Prosecution. The Prosecution have wrongly interpreted event's and acts resulting from the purely military execution of certain tasks.

The well-known meetings with Hitler can be used even less as a proof of the existence of an institution similar to an organization, since they were held -- and this was repeatedly explained in the course of these proceedings -- merely in order to allow the participants to listen to a speech by Hitler, and subsequently to receive his orders. Regarded from the point of view of the commanders, these meetings, therefore, had a purely military character.

I think I can therefore sum up as follows:

(1) The 129 officers concerned merely represent a multiplicity of persons, who neither in law nor de facto possessed the capacity to negotiate, and therefore cannot be the object of a special legal, much less penal, judgment.

(2) The designations "General Staff" and "High Command" are misleading and wrong.

(3) The circle of officers concerned was neither a "group," nor an "organization," nor an institution of organizational character.

(4) The circle of members, which is clearly defined in any organization, would in this case be the subject of long drawn-out discussions.

(5) None of the officers ever declared to have joined an organization, or was conscious that he had joined an organization, or of having been a member of it. Most of the so-called "members" did not even know each other personally, and their attitude to the regime was widely divergent.

(6) There was no acting "executive organ," no "constitution" or "character." No "concerted will" was in evidence, nor was any "concerted action" discernible.

(7) The officers concerned, whose names and number we know exactly, can therefore be held responsible only as individuals, and only for crimes which they have personally committed. They were never grouped together collectively, and therefore cannot now be grouped together collectively merely in order to facilitate their punishment.

54

27 Aug. 46

In ancient times -- after the battle of Aigospotamoi -- certain generals were once to be condemned by a collective verdict for a kind of crime against humanity. They had failed to bury their dead. Thereupon, Socrates rose in court, argued against this proposition in a passionate speech, and demanded that the Tribunal should uphold the principle which was the absolutely indispensable condition of any just verdict, namely: That every military leader could only be indicted as an individual, and sentenced only in accordance with the measure of his personal guilt. Socrates was heeded. The Tribunal maintained the principle in spite of the opposition of public opinion, and refused to render a collective verdict. Should modem times throw overboard so easily something which has been looked upon as a fundamental principle of law for the past 2,000 years?

I believe that a collective indictment and a collective conviction are impossible. If only for the reasons which I have just presented, the Tribunal will have to reject the motion to declare the so-called "General Staff" and, "High Command" group as a criminal organization. But if one follows through the theory of the Prosecution further-without personally accepting it-the "criminality" of all the 129 officers would have to be examined. In other words, it must be ascertained whether this group as a whole has committed crimes in the sense of Article 6 of the Charter. For my part I deny this.

The accusation leveled by the Prosecution at the military leaders, of having at some time combined with the Nazi Party for purposes of executing a common plan, the objects of which were wars of aggression, war crimes, and crimes against humanity, presupposes that such a general plan did exist, that it was known as a common plan, and finally, that the military leaders, as a whole, had made this plan their own.

The Prosecution have raised these charges against the indicted group of persons as a whole. But I believe I have already proved that such an "organization" or "group" as an acting entity of these persons did not exist. The Prosecution circumvents this unavoidable difficulty by asserting that,

(1) the character and the actions of the five military major defendants are characteristic of all the 129 officers, and

(2) that, moreover, there is no doubt as to the criminal character of the entire group of these officers.

The American Chief Prosecutor explained in his speech that the human actions which are the subject of this Trial have been considered crimes ever since the time of Cain. To this I reply that since the days of Cain it has been claimed that the just shall not

55

27 Aug. 46

be destroyed together with the unjust in the expiation of crimes. The requirement of individual expiation of crimes committed is among the oldest elements of European morality.

I think it ought not to be too difficult for the four great victorious nations in practice to reach a similar decision in 107 individual trials on the individual guilt or innocence of these 107 living men as is being done in the trial against the five military major defendants. Where is the inner justification of, and the legal necessity for, a collective trial against these men? The innocent individual is only too easily condemned by a preconceived collective verdict.

The opinion, expressed by the Prosecution that the ideas and actions of the five major defendants are "with absolute certainty" typical also of the other members of the so-called "group," and thus at the same time of the criminal character of the "group" itself, is contradicted by the facts themselves. Membership in the "group" is conditioned exclusively by the holding of certain positions. Therefore only the holder of a typical position is typical of the "group." Since 95 percent of the officers concerned were commanders-in-chief of armies or army groups, the holders of these posts might possibly be considered as typical of the "group" as such, but this can in no case be said of the five major defendants, not a single one of whom ever held such a post.

On the other hand, the five major defendants are definitely nontypical inasmuch as they held positions not held by any other members of the "group." There is no second Chief of the High Command or Chief of the Operations Staff in this group, nor is there a second Commander-in-Chief of the Navy, and there is certainly not a second Reich Marshal. As the major defendants occupy a higher level in the military hierarchy than the typical military leaders, their position is different in respect to the decisive points. Although one or the other of the major defendants perhaps had a theoretical opportunity to influence the military resolutions of the Supreme Leadership, the typical members of the group certainly could not do so. If the major defendants, at least in their own sphere, knew the circumstances and backgrounds of the orders given, or could obtain such knowledge, this was impossible for the typical member of the group. If, in the case of the major defendants, a certain amount of political activity was unavoidable because they were at the highest levels, this was completely absent in the case of the field commanders. This short observation strikingly shows the arbitrary character of the Indictment combining heterogeneous elements and extending without further ado to the whole of the heterogeneous elements charges which the Prosecution, rightly or wrongly, believe they can bring against the major defendants.

56

27 Aug. 46

I am unable to follow the Prosecution in this direction, and in my observations I shall therefore not deal with the nontypical major defendants, but only with those members who can be considered as typical of the overwhelming majority of the "group." Only the attitude which these members adopted towards the alleged plans of the Nazis, only their knowledge of these plans, and the extent to which they co-operated in their execution, might lead to a charge against the "group" in the sense of the Indictment.

Since Hitler is dead, the Prosecution leaves him in the background, and looks for other responsible parties. Yet no one can deny that Hitler alone wielded the power of the Reich in his hands, and consequently also had the sole and total responsibility. The essence of every dictatorship ultimately lies in the fact that one man's will is almighty, that his will is decisive in all matters. In no other dictatorship was this principle developed so exclusively as in Hitler's dictatorship. If all military men and all politicians emphasize this repeatedly, it is impossible to suspect every one of them of lack of courage to stand by his conviction; it must have been a fact. The dictator exercised the power given to him with an almost demonic strength of will. Other than his, there was no will, no plan, no conspiracy. As regards the soldiers, it was particularly significant for them that Hitler had been called upon to assume power by Reich President Von Hindenburg, and had then been made absolute head of State by Reich law and public plebiscite. The perfectly legal and formally correct transfer of legislative power, and of the power to give orders, resulted in the fact that the soldiers, too, submitted to Hitler's personality. Furthermore, he knew how to play off one party against the other, but in his decisive resolutions he had neither advisers nor did he allow independent planning.

Hitler's character is truly comparable with that of Lucifer; just as Lucifer starts out on his radiant course of light with tremendous speed and immense momentum, gaining the highest pinnacle before falling into utter darkness, so Hitler followed a similar course. Who ever heard that Lucifer needed assistance, advisers, helpers in his lightning ascent? Does he not rather by the force of his personality carry with him to the dizzy heights all the others, and then pull them down into the depths with the same force? Is it imaginable that a man of this kind should have engaged in a long-term preparation of a plan, surrounded himself with a circle of conspirators, and sought their advice and assistance for his ascent?

This picture should not be interpreted as an attempt to elude responsibility: every German general is enough of a man to stand up for his actions; but if justice is to be done, the actual circumstances, as they really were, must be recognized and serve as a

57

27 Aug. 46

basis for the final judgment. The best proof, however, against the participation of the generals in Hitler's plans is given by Hitler himself when he says: "I do not expect my generals to understand my orders; I only expect them to obey them."

Just as at the end of the first World War it was the General Staff, so it is now the military leaders as such--again grouped together under the misleading collective term "General Staff"--who are clearly fated to suffer by the prejudice that they are possessed not of a soldierly but of a "militaristic" mentality. Literature and the press of the world declare with many voices that the German officer does not exercise his soldier's profession only as a duty, but that to him war--as the hub of all his planning and scheming--constitutes the highest value of all personal and national life. The American Chief Prosecutor defines this idea by saying that "war is a noble and necessary occupation for all Germans."

Such glorification of war has directed the mentality of the German officer corps for generations, it is asserted, exclusively towards aggression, conquest, domination, and violation of other nations. It may sometimes be difficult to refute prejudices--but to prove this slogan to be unfounded nonsense is fairly easy. The attitude and mentality which find its characteristic expression in the General Staff are known to have been created by men like Frederick the Great, Scharnhorst, Moltke, Schlieffen, and Seeckt. If we search the life and the writings of these men for evidence of a militaristic spirit, the result is distinctly negative. Hardly ever did a monarch meet with such enthusiastic praise as Frederick the Great found from the Englishman, Thomas Carlyle, and the American, George Bancroft, who says, in his History of the United States, that Frederick the Great did not contribute less to the freedom of the world than Washington and Pitt. Helmut von Moltke, who formed the personality of the German General Staff officer as no one else before or after him, expressly calls war, "the last means of safeguarding the existence, the independence, and the honor of a State." He also declared: "It is to be hoped that this last means will be applied ever more infrequently with our progressing culture. Who would wish to deny that every war, even a victorious one, constitutes a misfortune for one's own nation, because no territorial aggrandizement, no war reparations amounting to billions, can replace the loss of life and offset the grief of mourning. families."

Von Moltke's most famous successor, Count Schlieffen, was the author of the often misinterpreted slogan: "To be rather than to appear," which requires of every General Staff officer modesty, quiet work, and absolute renunciation of appearance before the public. Is it possible to express more strikingly in a few words the

58

27 Aug. 46

fundamental difference existing between this mentality and that of the National Socialists?

When in 1914 the German General Staff started on its crucial test, it was directed by the younger Moltke, a man of resignation, who as an anthroposophist was even further removed from militaristic conceptions than any of his predecessors. As regards General Von Seeckt, the creator of the Reichswehr, his principles as laid down in his programmatic essay Statesman and General, published in 1929, are such that this essay might, without substantial alterations, be immediately included in any handbook for British, American, or French officers.

To conclude this survey, allow me to quote from the memoirs of Field Marshal Von Mackensen, who was a man who must be considered, together with Hindenburg, as the chief representative of William II's officer corps. On the day when he gave orders for the great break-through in the battle of Gorlice--that was on 28 April 1915--he wrote the following lines:

"Today my expectations center around a murderous battle... It is expected of me that I should win a great success, but decisive and great successes in war are mostly achieved at the cost of considerable losses. How many death sentences does my order of attack involve? It is this thought that weighs heavily on me whenever I give an order; but I am myself acting under order, driven by unavoidable necessity. How many of the strong and healthy boys who marched past me yesterday and are today on their way to the front lines, will lie dead on the battle field within a few days ... Many of the radiant pairs of eyes into which I was able to look will soon be closed forever ... That is the reverse side of a military leader's job."

These, therefore, are the facts: How little do the leading men among the German generals correspond to the picture drawn of them by an envious, biased, or uninformed propaganda in the world. To correct this erroneous picture, is, I think, a duty which I have to fulfill in this unique Trial of historic importance. Has the German officer corps, and in particular, have the German generals changed since 1933? Have they, under Hitler, become disloyal to their teachers and drifted into a "militaristic" backwater? Has the spirit of a Moltke, of a Schlieffen, of a Seeckt become extinct in them? Have the generals turned to a criminal Nazi plan and taken an active part in it? I believe that the facts speak a language of sufficient clarity.

The "common plan," the "conspiracy," with the object of an extension of power destined finally to lead to aggressive war, was

59

27 Aug. 46

at first and primarily, as the Prosecution emphasized again and again, aimed at the subjugation of Germany itself, at the extermination of all elements of opposition in its own people. In this process, so the Prosecution alleges, the facts and experiences required for the planned subjugation and extermination of other nations were to be gained. Such an all-embracing plan, however, would under all circumstances have been conditioned by an inner agreement of the military leaders with these alleged objectives and principles.

What were the facts? Relations between the officer corps and the Party were anything but good. When the Party was entrusted with the leadership in all spheres of public life as well as in the creation of a totalitarian control of trade and industry, the officer corps was devoid of all influence. The officer corps participated in no political decisions. Excesses of high Party officials, terrorist methods of the Party, action against the Jews, the political education, of the young generation, and the anti-Church attitude adopted by the Party under the leadership of Himmler and Bormann, were sharply rejected. The attempt of the SA to take the place of the Armed Forces, and that of the SS to constitute a second Armed Force in addition, to the Wehrmacht, met with the strongest opposition.

This was the typical attitude of the military leaders. Where, then, was that ideological foundation which alone would have rendered common planning possible? Hitler's personality excluded every plan and every conspiracy under, beside, or with him. As regards the military leaders, there was no room, constitutionally or practically, for the pursuit of political aims or political plans. Beyond that, warnings arose from among the indicted officers against the policy pursued since 1935, which later on proved to be a va banque policy. The Chief of the General Staff risked his position and his life to call a halt to the fateful actions of a head of State who was resolved to go to the last extreme. From among the same quarters, a coup d'etat was finally attempted right in the middle of the war. Is there anyone who can still seriously assert that the mentality of these men, their planning and their scheming, was directed only toward war and to nothing but war, and to the assistance of a policy having a war of aggression as its purpose? If the Chief of the American General Staff, General Marshall, whose sources of information were no doubt excellent, in his reports to the American President gives expression to his conviction that there existed no common plan between the General Staff and the Party, but that on the contrary sharp differences often arose between the two, this is certainly an important and conclusive testimony to which I need add nothing more.

60

27 Aug. 46

I am now coming to the section of the Indictment according to which the military leaders as a whole are said to have deliberately, consciously, and treacherously committed the crime of planning and executing a war of aggression. The serious legal objections to characterizing a war of aggression as a crime under the Kellogg Pact have so often been dealt with by the Defense that I can refer to them. I wish to point out particularly the arguments put forward by Professor Jahrreiss, and in this connection I should only like to direct the attention of the Court to the fact that the men represented by me are neither politicians, nor statesmen, nor experts of international law, but merely soldiers.

Should we require of the soldiers of a country something that, during the preceding 20 years, the diplomats and legal advisers of the League of Nations were unable to achieve? A soldier bases his judgment primarily on his surroundings. In at least three cases during the last decade, he noted that perpetrators of an alleged crime of a war of aggression were not persecuted. Neither after Italy's war against Greece, nor after the Abyssinian war, nor after the war of the Soviet Union against Finland, were the soldiers of these countries indicted before a Tribunal.

The fact always remains that soldiers simply plan wars, not wars of aggression. That the classification of a war has nothing to do with war in itself cannot be judged on defensive or offensive strategy, as the Prosecution itself admits. Even the Prosecution admits that it is permissible to prepare military plans (including plans for an offensive), to carry them out, and, finally, to participate in a war. The classification of a war as a war of aggression is a purely political opinion. The planning of wars of aggression by soldiers is thus only possible when soldiers enter the political arena. The decisive factor, therefore, is that an officer participating in such planning knew that he was concerned with a political plan for a definite war of aggression, that his war of aggression was an unlawful one, and that by his own participation he himself was committing an unlawful act.

Now, how does the history of the last years before the second World War present itself to the military leaders? The decisive point for the conclusions to be drawn as to guilt or innocence is not how after the war and defeat these events are today clearly recognizable in their past development, but how they appeared at the time to the typical German military leader.

Whenever the world has passed through the upheavals of great wars, the, longing for eternal peace makes itself felt. This longing is strongest in the case of those who made the greatest sacrifices in the war. In the first World War, they were the German officers'

61

27 Aug. 46

families from which the majority of the indicted military leaders come. Those who witnessed the death of their own young generation are not eager to sacrifice their own sons in a new war. And should precisely these men be inclined to start another war of aggression? It was not the waging of wars, but the education of youth to a decent attitude, to a clean mind, to honesty and comradeship, which was considered by the officer to be his real task.

The abolition of the Treaty of Versailles was not a specific objective of the German generals, but it was the obvious aim pursued by German policy as such. Reich Chancellor Bruening, who is certainly above suspicion, declared on 15 February 1932, that "the demand for equality of rights and equality of security is shared by the entire German nation. Any German Government will have to put forward this demand."

The endeavor to regain control of the lost German territories was not a matter for the generals alone, but was a common objective of all Germans, and certainly not an immoral one. I merely remind the Court of the same endeavors made by France with regard to Alsace-Lorraine after 1870-71. When Hitler definitely renounced Alsace-Lorraine before the German Reichstag, the German generals also considered this declaration as a political necessity, and were in perfect agreement with this manifestation of his will not to start a war. The wish for a modification of the eastern frontiers was generally supported by the German nation. The separation of Danzig from the Reich and the creation of the Corridor were considered intolerable by the whole of Germany--and, by the way, were severely criticized by Allied statesmen after 1918.

The union with Austria was, in the first place, an idea emanating from Austria herself. Its justification cannot be denied, if it could be realized voluntarily.

The soldier as a realist knew better than anyone else that these objectives could not be achieved through violence and war. But if the conquest of parts of Finland, of Poland, and of Bessarabia by the Russian soldier is not considered a crime, how can the German officer be reproached with pursuing as his aim the improvement of Germany's international position by peaceful methods? How can this attitude of the German officer justify the conclusion that he endeavored to reach this goal only by way of wars of aggression?

I can, therefore, sum up the situation as follows: The indicted military leaders, as a whole, did not want to put an end to the Treaty of Versailles in order to wage war, but only in order to give Germany equality of rights and security. They did not want to conquer half the world, but to rectify a frontier which was insupportable morally, militarily, and economically; they did not want to wage aggressive wars, or war in general, at any price, but they considered war in the same way as all soldiers of the world, namely, as a final irrevocable issue after all other possibilities have been exhausted. Now, the plan for a later war of aggression, according to the Prosecution, manifested itself already in rearmament and in the occupation of the Rhineland.

The Prosecution here again resort to the slogan of German "militarism," which they say existed independently, was older than the Party, and worked, even before the accession of the Party to power, along the lines followed by Hitler's later plans. But what was the actual military situation, say in 1935?

Germany had an Army of a maximum strength of 250,000 men including reservists, no modern arms, no guns of more than 105 nun. caliber, no Air Force, and entirely obsolete fortifications. The Navy had only 15,000 men, was not allowed to have ships bigger than 10,000 tons, and had no submarines.

The so-called frontier guard, which already infringed upon the military clauses of the Treaty of Versailles, was so insignificant as regards its organization, armament, and supply of ammunition, that it could be used only for defense purposes for a limited period; and its military value was equal to that of an

62

27 Aug. 46

almost untrained militia. The "Black Reichswehr," which has been so extensively dealt with by foreign propaganda, was dissolved as early as 1923.

Now, as opposed to the poorly-armed Reich, there were: France, with 600,000 men in peacetime and 1,500,000 men in war; Czechoslovakia, with a war strength of 600,000 men; and Poland, with a war strength of 1,000,000 men. All these states were equipped with the most modem armament, they possessed an Air Force and armored formations.

Is there really anyone who could consider these modest and, measured by the requirements of a modern war, positively ridiculous German measures of rearmament, compared to the armaments of neighboring countries, as a preparation of, and the foundation for, ultimate wars of aggression?

In the same way, the whole mentality of the military circles of that period was exclusively directed towards defense. The aim pursued in the training of the troops was the formation of subleaders in sufficient number to expand the Army threefold in the case of a conflict. This would, at best, have been just sufficient to ward off one of the possible enemies. In battle training, the main subject was delaying resistance. In the same way the training of officers exclusively provided for defense and the temporary stoppage of an enemy attack -- in the majority of cases, only inside Germany. As for the war-time organization, involving an approximately threefold expansion of the Army in the case of war, to take effect as from 1 April 1930, the available stocks of arms fell far short of actual requirements. Until 1935, there was no planning of deployment.

It cannot be objected that even these modest preparations were absolutely superfluous even as defense measures since nobody was threatening Germany.

It was only under strong Anglo-American pressure that France had renounced the left bank of the Rhine. Czechoslovakia claimed the Glatz mountain district and the Lausitz region. In Poland the annexation of Upper Silesia was openly demanded. Where is there to be found as much as a trace of German "militarism" as a precursor and advance planner of Hitler's schemes of aggression? The officers of that period worked only in a spirit of peace and humanity, in order to render defense possible in the case of an enemy attack.

The military leaders had no part in the political events of the years from 1935 to 1937, namely, the actual abolition of the Treaty of Versailles, the withdrawal from the League of Nations, and the declaration of Germany's armaments sovereignty. The military leaders believed in Hitler's declaration that the territorial frontiers laid down by the Treaty of Versailles would be respected, and the Locarno agreement observed, just as the whole German nation and the rest of the world believed in these statements. The points which the Prosecution omits because they do not fit into the picture of conspiracy built up by them, namely, the renunciation of Alsace-Lorraine, the treaty with Poland, and the Naval Agreement with Great Britain, were interpreted by the soldier as the end of the "Nightmare of Coalitions." Only the increasing estrangement from Russia was looked upon with misgivings. The reoccupation of the Rhineland was to the soldier a morally perfectly justified move resulting from Germany's position as an equal and sovereign state. In spite of this, the Commander-in-Chief of the Army gave such an emphatic warning that the number of garrisons posted on the left bank of the Rhine was limited to only three battalions.

The indicted military leaders as a whole had no influence on the course of developments. In fact, they themselves were surprised by them. If in all those years Hitler's moves were tolerated by foreign countries and recognized at least de facto, then the reason may be, as Justice Jackson believes, that these foreign countries had "weak governments." But the fact remained that there was international recognition. If even foreign countries failed at that time to recognize all these developments as the "beginning of the execution" of wars of aggression, how could the German military leaders as a whole possibly have been aware of such plans on Hitler's part?

63

27 Aug. 46

The military expert will find his last doubts about the intentions of the military leaders removed when he looks into the military plans of that period, which contained nothing but directives for defense. In that respect, the final address made by General Beck to a circle of high-ranking officers at the conclusion of an operational task concerning the subject "War with Czechoslovakia" may be considered as characteristic. In this address he spoke with great seriousness of the results of the preceding studies and stressed the fact that although Germany would be able to defeat the Czech Army within a few weeks, she would subsequently not be in a position to offer any serious resistance to the French forces which would, in the meantime, have crossed the Rhine and invaded Southern and Central Germany; so that the initial success against Czechoslovakia would bring in its wake a formidable catastrophe for Germany. These arguments can certainly not be interpreted as indicative of the German generals' lust for war, nor for their approval of Hitler's possible plans of aggression.

In the following period, the German military leaders likewise earnestly repeated that German policy, whatever its aims might be, should never create a situation which would lead to a war on two fronts. In view of the numerous mutual assistance pacts, guarantee obligations, and alliances among all the neighbors of Germany, this attitude excluded, as a matter of principle, any idea of waging a war of aggression.

History has justified the opinion held by the generals. Hitler disregarded their warnings, and exclaimed in indignation: "What sort of people are these generals, that I as head of the State should have to drive them to war? If things were as they should be, I would not know where to turn from their clamorings for war!"

Only those who do not desire to see the truth can overlook these facts. If ever there was unanimity among the military leaders, it certainly did not exist with regard to the planning of wars of aggression, although, based on the very sober realization of the dangers and consequences of any war for Germany and the world, agreement did exist in the rejection of such plans of the head of State.

Hitler, the man who thought he knew best, considered these men unsuitable as "participants" in his plans, and dismissed them. Nor did he consider any other officer from the so-called "circle of conspirators" suitable to become the Supreme Commander and the future participant in possible plans, so that he personally assumed Supreme Command, of the Armed Forces, and thus became their immediate military superior.

The expressions of his will and his directives to the Armed Forces now took the character of military orders. Although protests

64

27 Aug. 46

were still possible, nothing remained but the duty of the subordinate to obey if he who gave the orders abided by his opinion. This, I imagine, is a principle governing all armies of the world.

At this point, I must refer to a document which the Prosecution has particularly stressed as proof of the plans of the "criminal organization." I am referring to the so-called "Hossbach minutes," dealing with the meeting of 5 November 1937. What actually did happen?

It was not an "influential group of Nazi conspirators meeting Hitler to consider the situation," but Hitler, in his capacity as head of the State, had convened some military leaders and the Foreign Minister for a meeting. He developed his own ideas. He began by declaring that the problem of Austria and Czechoslovakia must be solved between 1943 and 1945; then he referred to the Poles as possible aggressors. There was no question of settling the Corridor problem, or of conquests to be made in the East, and similar subjects.

As regards the reliability of these minutes, Affidavit Number 210, deposed by General Hossbach, which I have submitted to the Court, clearly shows that Hossbach did not take down the actual text of the speech while it was being made, but wrote an account of it from memory a few days later. Everybody knows how easily mistakes liable to distort actual events can occur whenever records are made subsequently, because the writer employs his own words or leaves gaps where his memory fails him.

The following at any rate is certain:

(1) The Reich War Minister and the Commander-in-Chief of the Army not only did not agree to any warlike plan, but pointed out in all seriousness, and with due emphasis, the danger threatening from Britain and France, referring at the same time to Germany's weakness.

(2) Whatever may have been the meaning of Hitler's speech, none of the other military leaders were informed of the ideas expressed by Hitler at that meeting. General Von Fritsch did not even inform his successor of them when he obtained his discharge.

(3) Even if some individual officer had gained knowledge of the subject of this conference, no conclusions can be drawn from this fact against the bulk of the military leaders. If Hitler envisaged war in six or eight years, that was no reason to worry. During such a long period numerous political solutions would still be possible. Nor was it possible to recognize Hitler's true ideas from this speech any more than from any of his other speeches.

(4) The few officers present at the meeting were bound to draw from his speech at least the positive conclusion that Hitler himself was contemplating definitely peaceful development until 1943.

65

27 Aug. 46

Where, therefore, is the proof of participation by the generals in Hitler's plans?

Again, the Prosecution is endeavoring to draw conclusions as to the attitude of the generals towards the entire plan from their reactions to the union with Austria and to the Czechoslovakian question. The special emphasis which was laid on the participation of some officers in the conference held between Hitler and the Austrian statesmen on the Obersalzberg in February 1938 is particularly well illustrated by the words which Hitler spoke some time later: "I selected my most brutal-looking generals to appear as supernumeraries in order to demonstrate the seriousness of the situation to Schuschnigg."

The actual march into Austria and the occupation of that country were political actions, the background of which was unknown to the generals. The officer only saw that when his troops marched into Austria they were everywhere showered with flowers and enthusiastically welcomed by hundreds of thousands of people, and that not a single shot was fired.

The deployment plan "Gruen" against Czechoslovakia, to which the Prosecution refers, was not a consequence of the meeting of 5 November 1937, but constituted a purely precautionary measure

contemplated in the event of a war with France, and was already in the hands of the General Staff on 1 October 1937; that is to say, before the meeting of 5 November. Although in this case too an

agreement was reached which provided for the entry of the German troops, the Chief of the German General Staff, General Beck, in a memorandum drawn up with the approval of the Commander-in-Chief of the Army, warned against a policy which might lead to armed conflict. In this memorandum he emphasized that any war launched by Germany in Europe must ultimately lead to a world war and to a tragic end for Germany. General Beck was dismissed. When Hitler turned directly to the chiefs of the general staffs of the armies on 10 August 1938, obviously hoping to overcome the resistance of the older commanders-in-chief with the help

of the younger generation, the objections raised by these younger officers were such that he became even more suspicious of the generals. Where, then, was the enthusiasm of the generals for Hitler's plans? Where was their participation in them?

Hitler's constantly changing utterances in the Sudeten question made it all the more impossible for the military leaders to realize that he might seriously be planning a war. On 5 November 1937 he declared that he would settle the Czech problem between 1943 and 1945. On 20 May 1938 he declared in a military directive: "I do not intend to smash Czechoslovakia in the near future by military action without provocation." On 30 May 1938 he issued a directive

66

27 Aug. 46

to the Armed Forces in which he said: "It is my unalterable decision to smash Czechoslovakia by military action in the near future." On 16 June 1938 he said in another directive: "The immediate objective is the solution of the Czech problem by my own free decision." On 24 August 1938 he specified that an "incident" in Czechoslovakia must be the prerequisite for a German attack. On 16 September 1938 the military preparations began at the frontier. But political negotiations were opened simultaneously. On 1 October 1938 the territories ceded were peacefully occupied in accordance with the political agreements. The Protectorate was occupied as a consequence of a purely political action; the military leaders merely received the order for a peaceful entry.

When in December 1938 a written order to the Army High Command decreed that the Army was to devote itself until 1945 exclusively to the tasks of its organization, structure, and training, and that it was to abstain from any kind of preparations for a war, including preparations for the defense and safeguarding of the frontier, the military leaders gained the firm conviction that a peaceful development had been secured. Which of these events was to permit the conclusion that the military leaders had participated in a general plan directed toward a war of aggression? In each case the military leaders did nothing but execute their purely military orders after political decisions had been made.

The political development which led to the war with Poland has been sufficiently dealt with in this Trial. It merely remains my duty to explain how this development appeared in the eyes of the military leaders. How were the relations between the generals and Hitler at that time? He was the Supreme Commander of the Armed Forces. In other words, he was their immediate military superior. Their political objections had everywhere been refuted by events; in the case of the occupation of the Rhineland, in connection with the union with Austria, in the Sudeten problem, and on the occasion of the creation of the Protectorate.

It is easy, from our present knowledge of things, simply to deny these facts, but in those days the belief in Hitler's political ability was a tangible reality for the majority of the German citizens and soldiers. After all, he had achieved all his successes only by political means, not in a single case by war: To realize that he would risk a war, a war of aggression with Poland, the military leaders would have had to be crystal-gazers. How were they to perceive his aims? The Foreign Office was prevented from informing them of the political situation. Neither as individuals nor as a group were they able to participate in political decisions. The proposals made by the German Foreign Minister to the Polish Ambassador in October 1938, the conferences between Hitler and

67

27 Aug. 46

the Polish Foreign Minister himself, could only be judged by the soldiers as Attempts at a political settlement of the Polish problem, but never as an indication of an intended war of aggression.

The first military directive of April 1939 amounted to nothing more than the preparation for an "eventuality." If a military leader considered the situation realistically, the assurances of British and French help for Poland were bound to make the idea of a war of aggression against Poland appear absurd.

The conference held on 23 May 1939 was a unilateral speech addressed by the Supreme Commander to the military leaders he had summoned. When Hitler declared, in the course of his address, "I would be an idiot to blunder into a world war on account of the lousy Corridor problem like the inefficient statesmen of 1914"; and when, in reply to an observation made by Field Marshal Milch that the production of heavy bombs was quite inadequate in the event of a war and must immediately be increased, Hitler said that there was ample time to take steps in that matter, the military leaders were bound to conclude from this that Hitler had made military preparations only to support the initiated political moves, but that he would on no account run the risk of armed conflict with Poland.

Nor was the conference held on 22 August 1939 a consultation with advisers, but an address by the Supreme Commander directed to the military leaders whom he had called together. When Hitler said in his speech, "We have no choice; we must act," he did not indicate how he intended to "act." At any rate, the military leaders were by no means under the impression that a war against Poland had been decided upon. On the contrary, the obvious relief with which Hitler announced that a trade agreement had just been reached with the Soviet Union impressed all those present at the meeting with the firm belief that he would find a diplomatic solution in the Polish question, too.

Until then, Hitler had always masterly seized the right Opportunity. No one ever used bluff with greater virtuosity than he did. Bluff and military pressure, however, are recognized instruments of politics. It is quite wrong to conclude that a man who practices or supports one or the other of those methods thereby also approves of a war of aggression. If Hitler had really conceived the plan for an aggression against Poland at some earlier date, the

military leaders were not even able to recognize this plan as such. In the last analysis, they themselves were "bluffed."

But what were they to do once the die was cast? Were they to declare, "We cannot do this," or were they to refuse to obey? They had to do their duty. They were in exactly the same situation as the Russian army commanders who entered Poland a few days

68

27 Aug. 46

later upon orders from Stalin. Once the war had begun, the words of Napoleon carried weight with the military leaders:

"You must remember, Gentlemen, that in war obedience comes before courage."

However, the Prosecution holds the military leaders responsible not only for the outbreak of the war, but also for its prolongation and for its conduct in general. The political and military reasons which have led to the prolongation and the shaping of the events of the war have been so often and so fully examined in this Trial that I must refrain at this juncture--particularly in view of the limited time at my disposal--from reopening this matter for a general survey.

As regards the military leaders, the political background of the second World War presents itself clearly as the consequence of the conditions created by the Treaty of Versailles. Thus it seemed to them that in the last analysis the German action against Poland was morally justified.

The war in the West was the last thing which the German generals desired. When Britain and France declared war, this was certainly not a move which was welcomed by the German military leaders. The prolongation and extension of the war can no longer be considered as resulting from free decisions or preconceived plans. The necessities arising from a life-and-death struggle, once a war has broken out, dictate to, every nation the road which it has to follow. Under the circumstances, a soldier is nothing but the sword which must strike and the shield which must receive the blows in order to prevent the death of his own nation.

The evidence produced in Raeder's case has made clear beyond doubt the considerations that guided the group of officers who prepared the occupation of Denmark and Norway. We know that in this case Germany forestalled an Allied action by a very narrow margin. If the Commander-in-Chief of the Navy himself was convinced that it as absolutely necessary to avert the very serious dangers which threatened Germany, how, in these circumstances, could the troop commanders who are members of the so-called "group" have been persuaded that there was no reason to fear such grave danger? Would the Allied chiefs of, General Staffs and field commanders have had a right or an opportunity to refuse to embark their troops, which was done for the same purpose before the German action was undertaken? Moreover, only a limited number of military leaders had any knowledge of this action at all. All the other officers covered by the Indictment only heard on the radio that the operation had been undertaken. How can they be accused of taking part in planning aggression against these countries?

69

27 Aug. 46

The reasons for the Western campaign and its prerequisites have also been discussed conclusively. The attitude which the generals adopted in this case constitutes a particularly striking refutation of the assumption made by the Prosecution. The Army High Command itself strongly objected to Hitler's decision to launch an attack in the West, particularly because of the intended violation of neutrality. The clash with Hitler was so serious that in his address to the commanders-in-chief on 23 November 1939 he directed exceptionally bitter attacks against his generals; he accused them of being ignorant of foreign political questions and referred to them as an "obsolete upper class which had already failed in 1914." That very evening the Commander-in-Chief of the Army sent in his resignation which, however, was not accepted.

Thus the Army High Command sharply opposed Hitler's plans. There were serious clashes between Hitler and his generals, and finally the Commander-in-Chief of the Army asked for his release. What else could have been expected of the generals? Ought they to have decided upon mutiny in the face of the enemy? Even such an action would have failed completely to produce any effect, owing to the strong position which the victorious Hitler occupied at that time in the German nation. Beyond that, the Army High Command, still hoping that there might be possibility of peace, delayed the beginning of the attack until the spring of 1940. Although from the legal point of view the advance through Belgium and Holland constituted an objective violation of neutrality, the military leaders were bound to consider this action as necessitated by the requirements of war and as justified by the information they had received concerning the threat of violation of neutrality on the part of the Allies. This was all the more true because they had no general knowledge of the political situation and no influence at all on the decisions to invade these countries.

The reasons which led to the German action against Yugoslavia and Greece have been sufficiently clarified in the evidence obtained from Goering, Keitel, and Jodl. The war against Greece was a logical consequence of the action which Italy had taken on her own; the war against Yugoslavia was a result of the sudden coup d'etat in Belgrade. As to the military leaders, they did not even consider a war in the Balkans, much less assume responsibility for it.

The military leaders had not contemplated the possibility of an entanglement with Soviet Russia in any way at the beginning of the war; nor did they make any preparations for such an eventuality. The Army High Command did not even possess the necessary maps! When Hitler subsequently induced them to make such plans, he justified this by the necessity to forestall a threatened intervention by Russia. Russia's action against Finland, the Baltic states,

70

27 Aug. 46

and Bessarabia appeared to confirm the correctness of this opinion. Reliable information about strong Russian troop concentrations were to them a further indication of a threatening danger. The evidence given by Field Marshal Von Rundstedt and General Winter shows that the German attack ran into strong Russian preparations for deployment, which contributed substantially towards confirming in the minds of the military leaders the conviction that Hitler had been right in saying that they were engaged in a genuine preventive war.

The ground organization of the Soviet Air Force had been advanced so close to the frontier that this fact alone necessarily led to the conclusion that it was Russia's intention to attack. 10,000 Soviet tanks, 150 Soviet divisions, and an increase from 20 to 100 air fields in Eastern Poland alone were reported at the time. If the military leaders under these circumstances considered that Hitler's decision to wage a preventive war was justified from the military point of view, then their participation in this war in the execution of their duties as soldiers was certainly no crime.

The military plan known by the code word "Barbarossa," which the Prosecution considers as a plan for a war of aggression, had been contemplated until the last moment merely as a possibility, as a precautionary measure in case the Soviet Union should change her attitude. Even after February 1941--apart from the high-ranking officers of the OKW and OKH and the Commander-in-Chief of the Air Force-only 18 out of the 129 indicted military leaders had heard of this plan at all, and then only as a plan to be used if the need arose. The Commander-in-Chief of the Army, Field Marshal Von Brauchitsch, had warned Hitler with regard to this possibility by referring to serious military objections; but the majority of the officers concerned only learned of it immediately before the beginning of the war-when the die had already been cast-through the orders given them.

How could the 18 officers who heard of this plan have effectively and successfully opposed Hitler's intentions? The reasons indicated by Hitler justified the war. To wait until the Soviet threat became a real attack, would necessarily have led to the destruction of the Reich as far as could be judged from the military point of view. The other military leaders had no possibility at all of rejecting Hitler's decision.

The beginning of the war against the United States has also been discussed already. War was declared without previously obtaining the opinion of the supreme military leaders. If even the Army High Command was confronted with the accomplished fact, how could the other military leaders have had any knowledge of Hitler's intention to begin this war? As regards the Navy, which

71

27 Aug. 46

could only play a part in waging this war as long as the land or air forces of the United States did not intervene in Europe or Africa, it is a fact that hostilities had practically been opened before the declaration of war by Roosevelt's order to fire, although the German forces strictly respected the 300-mile limit, unjustified though it was under international law. Evidence in the case of Raeder and Doenitz has clearly shown that all directives emanating from the High Command of the Navy were intended to avoid a conflict with the United States under all circumstances.

I am now coming to the conclusion of this chapter: What responsibility have the 129 indicted officers as a group in the extension of the war?

I believe that they have no other responsibility than that which is borne by every soldier who fights in a war for his country on the spot where he is ordered to fight.

THE PRESIDENT: The Tribunal will adjourn for 10 minutes only.

[A recess was taken.]

DR. LATERNSER: I now come to the chapter "Crimes against the Rules of War and against Humanity." The accusation that the military leaders concerned took part in the planning and the execution of a criminal total war, in particular also in crimes against enemy armies and against prisoners of war, as well as against the population in the occupied territories, affects the German generals with particular severity. These generals are not concerned with minimizing any possible guilt of their own, but with establishing the historic truth. If we wish to form a just opinion of the terrible events of the last World War, we must realize that actions and deeds of individuals and nations are not merely the outcome of a free will or of bad or good faith. They are the result, on the contrary, of the mental and spiritual forces at work in our epoch, and no one can avoid these influences.

As early as the beginning of the 19th century the nations had to face the problem of power in all its forms. The various doctrines, the materialistic conception which generally prevailed after the second half of the 19th century, and finally the excessive nationalism noticeable on all continents, were phenomena which -- irrespective of whether they were good or bad -- did not fail to influence the attitude and actions of the nations. Although these ideas did not necessarily have to lead to the results with which we are faced today, they are in the last analysis the intellectual starting point from which originated the second World War with all its consequences. There is another aspect which must not be overlooked in

72

27 Aug. 46

any just evaluation of the general trend of events, in particular as regards the formidable sacrifices of human lives, and that is the de-personalization of men, which is due to a development noticeable in all civilized nations, and which has been called "massification." The more the nations multiplied, the lower, unfortunately, did the value of the individual sink. But, above all, technical progress contributed considerably to this de-personalization. If modern technology supplies man with the means of, destroying tens of thousands of human lives in one blow, if air raids cause 200,000 deaths in one single night, as at Dresden, if one or two atom bombs are sufficient to kill a hundred thousand men, the value of men must. necessarily sink. The same phenomenon made its appearance in the first World War as in the Russian Revolution and in the Spanish Civil War. The German military leaders struggled against this development, but as children of their epoch it was just as impossible for them to avoid the influence of the spirit of that epoch as it was for the soldiers of the other countries.

The second World War, however, was not only a purely military war, but in addition it was in its effects predominantly an ideological war. In any clash of ideologies the struggle becomes a struggle of annihilation, a total war. Ideological wars have always demanded streams of blood and were accompanied by unimaginable atrocities. The religious wars and the sacrifices and cruelties of the great: revolutions are outstanding examples. Thus the second World War as a conflict of ideologies was conducted on both sides with such vigor and perseverance that it finally led to the full utilization of human and material resources of every nation. In other words, it produced "total war" in the truest sense of the word. If, beyond that, the term "total war" was extended by the politicians on both sides to mean the total destruction of enemy ideology, this shows what an ideological conflict involves.

What was the attitude of the generals to this problem? The group, of generals covered by the Indictment consisted exclusively of men who had chosen a soldier's profession as their career. They were mature men, with experience of life, who had not put on a soldier's uniform only under the National Socialist regime; but it is precisely the mature man who has a stronger sense of tradition, justice, and law, than a younger one.

Thus, soon after the outbreak of war it became manifest also, in this instance that the military leaders did not in any way agree with Hitler's revolutionary ideas on the methods of warfare and, refused to make these ideas their own. The generals were firmly resolved to conduct the war according to the old traditions, which implied strict observance of the rules of warfare. The reproach directed against the generals by Hitler in November 1939 in regard

73

27 Aug. 46

to their "obsolete conception of chivalrous warfare," is quite significant. That this attitude of the generals did not change subsequently is shown by the fact that in the later course of the war a great number of the indicted generals were relieved of their functions on account of this attitude, in spite of their military successes.

Three Meld Marshals have appeared as witnesses before the Tribunal. Did anyone gain the impression that these men were criminals and had committed crimes against the rules of war and against humanity? Those officers knew from their experience during the first World War that any violation of the rules of war would ultimately always turn against the soldiers of their own army. Until the last moment they conducted the war against the armed forces of the enemy in accordance with the rules of war. The generals took the same attitude in regard to the civilian population and the administration of the occupied countries.

The military leader who is responsible for operations at the front has one primary concern, namely, that quiet and peace should reign in the rear areas. This alone will induce him to avoid anything that may cause unrest among the population. He knows only too well that all unnecessary measures of compulsion only lead to hostile reactions which in turn bring about intensified reprisals which can only produce rebellion. If one has no faith in the soldierly honor and in the Christian mentality of the military leaders, one might at least believe that sound reason caused them to treat the population of the occupied territories in accordance with international law, to spare their private property and to assist them as far as possible in their peaceful work.

On the other hand it is obvious that open resistance in the rear of an army cannot be tolerated, and that in such cases the military leaders must take appropriate countermeasures. The threat of severe punishment by the Allied Military Governments in the case of any rebellion or possession of arms in Germany, even now after the end of the struggle, also proves this.

As a consequence of the double aspect of the second World War--the military on the one hand, and the ideological on the other--the conduct of the war, from the highest levels immediately below Hitler down to the lowest executive organs, was sharply separated. The Armed Forces were concerned with the purely military conduct of the war, while anything connected with the parallel ideological and political struggle was entrusted to political agencies and their executive organs.

Thus, contrary to former custom, those parts of the enemy country which had been conquered by the Armed Forces were, as a matter of principle, withdrawn from the territorial control of the commander-in-chief immediately after occupation, and placed under

74

27 Aug. 46

the authority of the representatives of the political leadership. Therefore, anything in the nature of possible crimes which may have been committed in territories not under the territorial control of the indicted group of persons must be excluded in this Trial as far as the question of the responsibility of the so-called "group" is concerned.

The Protectorate, the Government General of Poland, Norway, Belgium, and Northern France, the remainder of occupied France, Luxembourg and Alsace-Lorraine, Croatia, Yugoslavia and Greece, Slovakia, Hungary, and Italy were not placed under the territorial authority of the military leaders.

In the Soviet Union, the area of operations had from the very outset been limited as narrowly as possible by Hitler's order and therefore it comprised only the territory within the immediate sphere of military operations until finally territorial control was limited to the immediate combat zones, that is to say, to the area roughly 10 kms. behind the first front line. Outside this strip of land the territories were placed under the administrative authority of political agencies. Charges directed against the "military commanders" or "Wehrmachtsbefehlshaber" appointed in the individual countries and territories are irrelevant in this connection, because these officers are not included in the Indictment. This organization of the administration shows that Hitler, as a result of his distrust for the military leaders because of their attitude to the questions of warfare and humanity, had quite consistently entrusted the execution of the ideological and political struggle to the political agencies and their executive organs.

The commanders-in-chief, therefore, held territorial authority locally only insofar and as long as any particular area in enemy territory was part of the area of operations, and consequently their responsibility was limited in accordance.

But even inside the operational areas, all tasks not immediately connected with the operations themselves were withdrawn from the influence of the Wehrmacht and put under the responsibility of completely independent political agencies. This included, for instance, all measures of a political and police character, the economic exploitation of the occupied territories, measures pertaining to the realm of culture, and manpower problems. Apart from the purely military operations on the front line there remained therefore as the task of the commanders-in-chief only military security and the establishment of local administration within the areas of operation.

Moreover, they were kept so busy in the areas of operation with the tasks connected with the conduct of operations, the supplying of their troops, and military security, that it was hardly possible

75

27 Aug. 46

for them to concern themselves with other tasks. It was their duty to be with the units under their command in the area of operation. Their planning and their care had to be devoted first and foremost to the unceasing struggle, and to their troops. Those facts supply the simple explanation of why it was possible to keep so many things and measures connected with other non-Army agencies a secret even in the areas of operation, and why they did not come to the knowledge of the military commanders.

The Waffen-SS units were subordinated to the commanding authorities of the Wehrmacht as combat units, exclusively for fighting purposes and as regards their supplies. Regarding their organization and personnel, both from the point of view of discipline and jurisdiction Reichsfuehrer SS Himmler alone had authority to give orders. All other organizations of Hitler, such as the Einsatzgruppen, Police, SD, Organization Todt, et cetera, received their instructions and directives exclusively from their own superior authorities, not from the commander-in-chief of the operational sector. This regulation of authority and division of responsibility practically limited the commanders-in-chief to directing the troops under their command in the area of operations.

After having thus clarified the sphere of responsibility of the military commanders, I now propose to turn to some special topics, and by way of introduction I might say, concerning the documents used by the Prosecution, that extracts from German directives taken from their context often fail to reveal the real meaning of the directives and lead to wrong conclusions. Other documents, in particular some of those presented by the Russian Prosecution, represent findings of certain commissions. No one can check the figures contained in these documents, for instance concerning murders, particularly since all specifications concerning the exact time when these crimes were committed and other substantial data are missing. The actual number of dead does not, in itself, prove that these dead were murdered by Germans.

Thus the seemingly crushing evidence of the Prosecution melts away upon closer inspection, particularly when we consider that these data were collected by numerous commissions, in all countries, and from hundreds of witnesses, over a period of several months, and that they include events which occurred not in one small area placed under the authority of a commander-in-chief, but in vast territories and over long periods.

In spite of great difficulties which the Defense had to overcome in the collection of their evidence, I was able to submit to the Tribunal very comprehensive Defense evidence together with observations and comments which I made so far as I was given an opportunity. As I am again working under a time limit, it is

76

27 Aug. 46

impossible for me to exploit fully even part of this counterevidence. I therefore propose to select only a few individual cases to which I attribute special importance.

There is the Commissar Order, which plays an important part, and which provided for the immediate shooting of political commissars. When Hitler first orally announced this order which he alone had planned, in March 1941, he at once met with the strongest inner opposition on the part of all the generals present, arising out of their soldierly and human attitude. When all endeavors by the generals, the Army High Command, and the Armed Forces High Command to prevent the issuing of this order by Hitler had failed, and the Commissar Order was issued some time later in writing, the commanders-in-chief of the army groups and armies either did not pass this order on to their troops at all, or ordered on their own authority that it should be circumvented. They did so in full consciousness of the danger that they might be heavily punished for open disobedience in war to an order of the Supreme Commander. The order on the preservation of discipline issued by the Commander-in-Chief of the Army in pursuance of the Commissar Order, had the desired effect. It gave the commanders-in-chief at the front a loophole to actin accordance with their own conception. Thus the military leaders achieved the result that the Commissar Order was not generally executed within the army groups and the armies. Ultimately, it was rescinded upon the energetic representations of the Chief of the General Staff, Zeitzler.

THE PRESIDENT: Is there any evidence in writing of that rescinding?

DR. LATERNSER: Yes, Mr. President. That part of the evidence is contained in the affidavits which I have presented, and the last paragraph I read can be proved by Document 301-B.

THE PRESIDENT: You mean that there was, in writing, an order by Chief of General Staff Zeitzler rescinding the order?

DR. LATERNSER: I think I have been misunderstood, Mr. President. According to the last paragraph which I just read, the Chief of the General Staff, Zeitzler, as a result of his counterreports, was successful in persuading Hitler to rescind the order. This is proved by Document 301-B, which I have presented to the High Tribunal and which is available in a translation.

What more can be expected of the military leaders? The order did not emanate from them, they did not pass it on, they did not execute it, they endeavored to have it rescinded, and finally reached their objective. Herein lies their solidarity and their unanimity, and precisely the handling of the Commissar Order is evidence of the most conclusive kind that the generals' attitude was beyond reproach.

77

27 Aug. 46

In the same way, the directive concerning the restriction of the administration of military justice in the East met with the opposition of the commanders-in-chief, who were present when it was orally announced. It is due to the generals' negative attitude that Hitler gave up his original plan, which provided for a complete elimination of the administration of military justice in the East, and was content with certain restrictions.

In this connection, too, the additional directives issued by the Commander-in-Chief of the Army concerning the maintenance of discipline are of the greatest significance. The commanders-in-chief of the army groups and of the armies acted as a group in accordance with the provisions of this additional order and took vigorous measures in all cases where members of the Armed Forces had committed offenses against the civilian population. In serious cases they had death sentences passed and executed. Even simple road accidents in which Russian civilians were injured were brought before military tribunals, and the persons responsible were taken to account. This is proved, among other things, by the evidence given by Field Marshal Von Leeb. Here again, therefore, precisely the officers included in the Indictment took steps to prevent the full execution of one of Hitler's orders, which was in contradiction to their own principles.

The attitude which the military leaders adopted with regard to Hitler's Commando Order was so unfavorable from the very outset, that Hitler was not only compelled to draw up this order personally, but also found it necessary to threaten exceptionally severe punishment if his order was not executed. And still the commander-in-chief in Africa, Field Marshal Rommel, destroyed the order immediately on receipt because of his inner opposition to it. The commander-in-chief in the West, Field Marshal Von Rundstedt, took steps to see to it that the order was not carried out but circumvented. The commander-in-chief in the Southwest, Field Marshall Kesselring, issued additional regulations which ensured treatment of Commando troops as prisoners of war. As regards the Eastern theater of war, the order was without significance anyway. These examples clearly show that here again the military leaders found ways and means to prevent the execution of the Commando Order which was in contradiction to their soldierly conceptions.

The individual cases mentioned by the Prosecution should be left out of account in this connection, since they are concerned with individual acts which have already been the subject of special investigations, or will be investigated later. But they do not in any way reflect the typical attitude adopted by the military leaders, which alone is relevant in this Trial.

It seems to me that the following questions are also of importance; could not the military leaders rely on the facts contained

78

27 Aug. 46

in this order being true? Were they not bound to assume that the order had been examined, in its relations with international law, before it was issued? Is this order absolutely inadmissible under international law? Does it still come under admissible reprisals? That will be a matter for the Tribunal to decide, if it attributes some importance to this order of Hitler with reference to the persons whom I represent.

As regards the treatment of prisoners of war, we have only to examine whether the commanders-in-chief, in execution of a common plan, ordered or criminally tolerated any kind of maltreatment of prisoners of war in the areas of operations.

If, during the first period of the Russian campaign, the Russian prisoners of War could not be accommodated and fed in accordance with the provisions of the Geneva Convention, this is entirely due to the fact that certain difficulties were at first unavoidable when hundreds of thousands of men were taken prisoner. Although after the end of the war the Allies were faced with similar difficulties when all of a sudden great masses of Germans were taken prisoner, the Allies will certainly not be prepared to accept a charge of crimes against humanity.

Moreover the individual cases put forward by the Prosecution have been invalidated or refuted by counterevidence from all theaters of war. The military leaders in all theaters of war forestalled possible excesses against prisoners of war by-issuing appropriate orders and calling to account the persons responsible for offenses connected with the treatment of prisoners of war. They neither ordered nor knowingly tolerated any maltreatment or killing of prisoners of war.

Partisan warfare, as a new kind of illegal warfare, was started by the remnants of enemy armies, or by rebels who were supported by their governments. They did not fight according to the customs of war, openly and bearing arms, but acted clandestinely with all kinds of camouflage. This Is clearly shown by the Russian instructions for Partisan warfare. In consequence the partisans could not invoke on their own behalf the protective provisions of Articles I and II of the Hague Convention on Land Warfare. Energetic German countermeasures in the form of reprisals were thus "necessitated by the requirements of war." Thus the Germans issued special regulations for partisan warfare in 1942, and a revised edition in 1944. The other orders issued in this connection, which. refer to "most energetic intervention," or speak of "annihilation of the enemy," that is to say, annihilation of his combat force, were likewise the consequence of the treacherous methods of the partisans. They were only intended to specify energetic intervention permissible from a military standpoint, not to authorize atrocities and arbitrary action. That excesses were committed in individual cases by the German troops was an inevitable reaction to the bestial murders of German soldiers.

But if the Prosecution go even further than that, and allege that the military leaders took advantage of partisan warfare in order to exterminate the civilian population of the occupied territories, this assertion is completely unfounded.

Affidavit Number 15, made by General Roettiger, to which the Prosecution have resorted, and which they have drawn up themselves, has been perfectly cleared up-in cross-examination. The witness never received any orders concerning

79

27 Aug. 46

partisan war which would have been incompatible with international law, and he confirms that military rules were observed even in this kind of operations.

The struggle against the partisans had, of necessity, to be bitter, owing to their illegal methods of fighting. But it was to be conducted only with permitted means. We are, therefore, concerned with necessary German measures of defense, which were not in any way directed against the civilian population of the occupied territories as such, and did not in any way have the extermination of this population as an objective.

The most serious accusation lies, no doubt, in the assertion of the Prosecution that the commanders-in-chief had full knowledge of the tasks and the activities of the Einsatzgruppen, which were allegedly under their command, and that they not only tolerated, but even actively supported the execution of the tasks of these groups. In this, the Prosecution relies on statements given by the higher SS leaders Ohlendorf, Schellenberg, and Rode, as well as on Document L-180.

Is this not highly doubtful evidence? Carl this evidence really convey to the Tribunal the conviction that the generals of the German Armed Forces offered their assistance in these most abominable mass exterminations? My answer is in the negative, and I give it with the fullest conviction. The evidence given by the witness Ohlendorf, under whose command thousands of Jews were murdered, has been refuted by General Woehler's evidence in all its essential points. Schellenberg, who occupied one of the most influential positions in the most notorious agency of Germany--the Reich Security Main Office-and was one of Himmler's friends, cannot supply any real facts but gives us only assumptions. He thinks he can assume that General Wagner was fully informed by Heydrich in June 1941 of the planned mass exterminations. When did this witness arrive at this incriminating assumption? Towards the end of 1945 when he was taken into custody, and when he was looking to his own advantages. Under my cross-examination, he was unable to indicate any facts from the year 1941 on which such an assumption might be based, but he nevertheless made it--for the first time in 1945.

Could General Wagner, a highly-qualified officer, who gave his life in connection with 20 July 1944, fighting against National Socialism, have emitted to report this atrocious information to his direct superior, Field Marshal Von Brauchitsch, with whom he had particularly close relations for a great number of years, and to Whom he had access at any time in his capacity of Quartermaster General? This assumption is impossible-and Field Marshal Von Brauchitsch confirmed this in the witness stand.

Schellenberg, furthermore, believes that he can assume that the Ic officers were informed about the functions of the Einsatzgruppen in connection with mass exterminations at a meeting held in June 1941. He is not satisfied with this assumption only, but he

80

27 Aug. 46

further assumes that these Ic officers informed the commanders-in-chief. This means that two of Schellenberg's assumptions, linked together, are to furnish the proof that the commanders-in-chief had knowledge of these planned mass exterminations.

And how did Schellenberg react in cross-examination to the assumptions made by him? I submitted to him a sworn statement by a man who was present at the Ic meeting, in which General Kleikamp expressly declares that there had been no mention of planned mass extermination, which must cause Schellenberg's structure of lies to crumble. His reply was that it was not for him to decide upon the value of the two oaths. He thereby places his assumption to the contrary, which is not founded on facts, on the same level as the positive statement made by one of those present at the meeting, according to which no information was given on the planned mass exterminations.

So much as regards Schellenberg's evidence. I ask the Tribunal to take full cognizance of the minutes of the cross-examination of this witness before the Commission.

The witness Rode, who is likewise a high-ranking SS leader, also wished to make a charge. He asserted that the Einsatzgruppen were placed fully under the authority of the commanders-in-chief, but he qualifies this statement by adding "to the best of my knowledge." This strips the evidence of the witness of all its value for the Prosecution.

I now turn to Document L-180, according to which the Commander-in-Chief of Armored Group 4, General Hoeppner, allegedly entertained particularly close co-operation with the Einsatzgruppen.

Is not the use of such a report highly dangerous to the finding of the truth, particularly since it only contains the views of its author? Then, too, it does not contain any indication as to the nature of this co-operation, or in what it consisted. The Einsatzgruppen and Kommandos, however, also had to carry out supervisory and investigating functions, as has been proved, and only these were known to the commanders-in-chief. If there was any co-operation at all, it could never have been in connection with mass executions of Jews.

General Hoeppner, who also lost his life as a victim of 20 July 1944, would have been the very last man to lend his assistance to mass murder. Is it really conceivable that a general who wants to remove a political system even at the cost of his life because of his special objection to its methods, should previously have taken part in the mass murders committed by this very system?

To my profound regret, I am unable to call Generals Wagner and Hoeppner as witnesses; both of them had not conspired with this system, but against it, and both sacrificed their lives thereby.

81

27 Aug. 46

It is rather peculiar to note that the Prosecution who easily turn ironical whenever the defendants invoke the dead, are now themselves endeavoring to prove by citing the dead that the military leaders had knowledge of planned mass exterminations and participated in them; and the dead, unfortunately, are unable to protest.

In contrast to these inconclusive proofs advanced by the Prosecution I have shown by numerous affidavits that

(1) the Einsatzgruppen, were not placed under the authority of the military leaders, which is also shown with particular clarity by Prosecution Document Number 447-PS;

(2) General Wagner clearly expressed this to General Judge Mantel; and that

(3) the military leaders had not been informed of planned mass executions.

The Tribunal will now have to decide whether it proposes to give greater credence to the SS leaders Schellenberg, Ohlendorf, and Rode, who are trying for the last time in their hatred to draw the military leaders into their own disaster, than to the officers of whom the Tribunal was able to obtain a personal impression.

Now as regards the other points of the Indictment, such as "maltreatment of the civilian population" and "destructions and lootings," I propose to refer to my submission of evidence on these points, which showed clearly that the military leaders intervened most severely in all cases of offenses brought to their knowledge.

As regards the participation of military leaders in the deportations of workers, the Prosecution has been unable to submit really conclusive evidence. The question concerning the shooting of hostages must be left out of account in this Trial, because the territorial military commanders in the occupied territories, insofar as they ordered any shootings of hostages at all, are not included in the group of persons represented by me.

Owing to lack of time, I propose herewith to terminate my observations on the war crimes and crimes against humanity. One thing, however, stands out very clearly: The military leaders did not act in execution of any plans having the object of committing war crimes and crimes against humanity. On the contrary, guided by a decent soldierly spirit, they conducted the war in a chivalrous way, and knew how to prevent the practical execution of all orders of Hitler which were not in keeping with their own conceptions

It may, perhaps, strike the Tribunal that in all these observations I have only concerned myself with the field commanders of the Army and with land warfare, not with the generals of the Air Force and the admirals of the Navy, who are also said to belong to the so-called group. I can only defend, however, what is being attacked.

82

27 Aug. 49

None of the submissions of the Prosecution concerning the commission of war crimes and crimes against humanity concern the commanders-in-chief of the Navy or of the Air Force at all. The only charge against the Navy, namely, that connected with the directives for submarine warfare, is specifically directed against the two Grossadmirale, who have assumed full responsibility for their orders, while the naval commanders-in-chief in the field had nothing to do with these orders at all. No charges have been proffered against the commanders-in-chief of the Air Force. It 17 admirals and 15 generals of the Air Force are included in the so-called "group," this constitutes the most striking proof against the theory of the existence of this "group" and renders any special defense of the admirals and of the Air Force generals superfluous.

The last count of the Indictment, that the military leaders had rendered themselves guilty because they tolerated in practice Hitler's criminal plans and deeds, instead of revolting against them. returns us again to the central problem of these proceedings against the soldiers: the problem of the duty to obey. It has been repeatedly stated that the Fuehrer order was not only a military order, but that it had, over and above this, a legislative effect.

Thus were not the military leaders simply bound to obey the law? If the duty to obey does not exist in the case of an order which aims at a civil crime, it is because the order demands an action. directed against the authority of the State. But can there be any question of a crime if the order requires action which is not directed against the authority of the State, but on the contrary is demanded by that authority? And even if we reply to this question in the affirmative, what citizen of any country in the world is in a position to recognize the criminal nature of his action?

It is not sufficient, in order to ascertain guilt, that the Prosecution explain what the defendants should not have done -- at the same time, they should tell us what they might, ought, and should have done, for any legal prohibition must also include a positive directive. If I suppose that, in spite of the sovereignty of the individual states, a legal obligation existed for the generals to act in accordance with international law and moral requirements even against the law of their own State, such a legal obligation could only be affirmed if the corresponding action offered a chance of success. After all, to allow oneself to be hanged merely to evade one's duties, to betray one's country without any prospect of being able to change matters--these things cannot be demanded by virtue of any morality. After all, there is no obligation for anybody to become a martyr.

And what were the possibilities of negative or positive action against orders and law on the part of the indicted generals? What

83

27 Aug. 46

were the chances of success? The simple rejection of unlawful plans or orders, be it by contradiction, warning, representations, objections, or the like, would have been in theory possible, but utterly unsuccessful in practice. To a certain extent this remained ineffective for the simple reason that the generals received no knowledge of many of the objectionable things. In the political and if ideological struggle, these methods were so carefully kept secret from the generals, that they did not even hear about mass executions, to say nothing of being able to prevent them.

In the military sphere Hitler's closest assistants may perhaps have been heard on the question as to how a resolution was to be carried out militarily, but their opinions were never asked for as to the resolution itself.

In the majority of cases the military leaders indicted before this Court only learned of these decisions at the moment when they were called upon to carry them out as soldiers. As far as possible they made objections. Before the Rhineland was occupied the Commander-in-Chief of the Army, Baron von Fritsch, advised against a policy which might produce a war on two fronts, as well as against rearmament, and was dismissed. The Chief of the General Staff, Beck, raised political warnings, and was relieved of his functions. General Adam also opposed the intended policies, and was discharged. The OKH opposed the offensive in the West and the infringements of neutrality, and was eliminated. The Commander-in-Chief of the Army remonstrated in connection with. outrages in Poland; the result was that the military agencies were excluded from the administration of the occupied territories. Warnings, objections, factual representations were never successful, and in the majority of cases only produced the effect that Hitler maintained his own opinions more stubbornly than ever, and insisted on his order being carried out. If even the steps taken by the highest commanders thus remained without success, what could the other indicted commanders of lower rank have achieved in this respect?

A democratic politician might say that they could have resigned. That is a practical possibility for a parliamentary minister in a democratic country--a German officer could not resign. He was bound by his military oath, which was a supreme obligation for the veteran officer, more than for anyone else. A German general could only ask for approval of his resignation. Whether that request was successful or not was beyond his influence. Moreover, during the war, Hitler prohibited any such request, and placed resignation on the same footing as desertion. A collective request for resignation, riot feasible anyway in practice, would have amounted to mutiny, and would merely have served to bring compliant elements into the leadership, but would never have had enough influence on Hitler

84

27 Aug. 46

as to cause him to change his policy, his orders, or his methods. The attempts at resignation which were actually made by some Field Marshals, and in particular by the Commander-in-Chief of the Army in November 1939, were flatly rejected. The subsequent dismissal was the result of Hitler's decision. The resignation of the field commanders would nevertheless have been their obvious duty and would have to be effected at all costs if these leaders had been faced with tasks in which, according to their conception, the honor of the German nation had been at stake. But precisely these tasks, among which I count the mass exterminations and the atrocities in the concentration camps, were outside the sphere of the generals and were even carefully kept secret from them.

Now, would open disobedience have been more readily possible, and would it have offered greater chances of success? The American Chief Prosecutor, in his report to the President of the United States, expresses himself as follows on this point:

"If a soldier drafted into the Army is detailed to an execution squad, he cannot be held responsible for the legality of the sentence he carries out. But the case may be different with a man who by virtue of his rank or the elasticity of the orders given him could act as he saw fit."

This view was not shared by the generals. On the contrary, a simple soldier's disobedience is easily offset in its effect by punishment, but the disobedience of a high military leader is liable to shatter the structure of the Army, and even of the State itself.

If there is anything in the world that is indivisible, it is military obedience. No one has defined the meaning and the character of a soldier's duty of obedience more correctly than the British Field Marshal, Lord Montgomery. In a speech which he made at Portsmouth on 2 July 1946, he declared that as the servant of the nation the Army is above politics, and so it must remain. Its devotion is given to the State, and it does not behoove the soldier to change his devotion on account of his political views. It must be made clear that the Army is not an assembly of individuals, but a fighting arm molded by discipline and controlled by the leader. The essence of democracy is freedom, the essence of the Army is discipline. It does not matter how intelligent the soldier is--the Army would let the Nation down if it were not accustomed to obey orders instantaneously. The difficult problem of achieving strict obedience to orders can only be mastered in a democratic age by the inculcation of three principles:

1. the Nation is something that is worthwhile;

2. the Army is the necessary arm of the Nation;

3. it is the duty of the soldier unquestioningly to obey al orders which the Army, that is, the Nation, gives him.

85

27 Aug. 46

And the German generals--according to the opinion expressed by the Prosecution--should not only have asked questions when they obeyed the Supreme Commander and the Nation, but they should even have rebelled openly!

Whoever wishes to render a just decision on this question ought himself once to have been an army commander during a war, in the front lines and in particularly serious circumstances, because there is a great difference between the commander on a heavily contested front line, who bears the responsibility for the life and death of hundreds of thousands of soldiers, and an officer who has no responsibility at the front line, or who is engaged only in a quiet sector. If the military leaders nevertheless unceasingly defended their soldierly conceptions and acted in accordance with them to the limit of their possibilities, this attitude ultimately produced no other effect than their complete elimination towards the end of the war. This is proved by a short survey of the fate of the military leaders:

Out of 17 Field Marshals who were serving in the Army, 10 were relieved of their functions in the course of the war. Three lost their lives in connection with the events of 20 July 1944. Two were killed in action, one was taken prisoner, and only a single general remained in service until the end of the war without being subjected to any disciplinary action. Of 36 generals (Generalobersten), 26 were removed from their posts, from among whom three were executed in connection with the events of 20 July 1944, and two were dishonorably discharged. Seven were killed in action, and only three remained in service until the end of the war without being subjected to disciplinary action. Those who were subjected to disciplinary action were highly qualified officers who had given a good account of themselves in combat.

Let me recapitulate:

(1) Military disobedience is and remains a violation of duty, in times of war a crime punishable with the death penalty.

(2) There exists no duty to disobey for any soldier in the world, as long as states with a sovereignty of their own continue to exist.

(3) Under Hitler's dictatorship, open disobedience would only have led to the destruction of the subordinate, but never to a repeal of orders given.

(4) No class has made, through its highest representatives, such great sacrifices for its conceptions as opposed to Hitler's methods, as the circle of officers who are indicted before this Tribunal.

In view of the impossibility and the ineffectiveness of any passive resistance, there would have remained only the method of violence, rebellion, and coup d'etat. Whoever contemplated this method had o be aware of the fact that it would have to involve the removal

86

27 Aug. 46

of Hitler and of the leading men of the Party in such a way that these men would be put to death. There was, therefore, at the beginning of each coup d'etat the inexorable compulsion to liquidate Hitler and the leading men of the Party.

To the soldier this meant murder and disloyalty to his oath. Even if it is demanded that the generals, for reasons of a higher world morality, ought to have sacrificed their personal and military honor, how could they have been justified in taking such action against the will of the Nation, and when could such action have been effected with good chances of success and for the benefit of the people? After the incorporation of the Protectorate, Hitler was at the crest of his successes and was considered by a great many Germans as the greatest of all Germans. If Churchill said of him, on 4 October 1938, that

"...Our leadership must have at least a fraction of the spirit of that German corporal who, when everything around him had fallen in ruins, when Germany seemed to have sunk into chaos for all times, did not hesitate to march against the formidable phalanx of victorious nations..."

is that not proof enough that the wrath of the German nation would have annihilated the generals who would have laid hands on Hitler? Were the generals to remove Hitler at a time when a peaceful settlement with Poland was still a practical possibility when it was impossible for the German people to foresee that the war would actually come, and what consequences it would have -- as they are today openly visible to all our eyes?

Then war did come, and it brought another and very decisive obligation for the military leaders. Any rebellion in war would have amounted to a catastrophe for the Reich. Even then, as long as there were victories, no rebellion would have had any chance success. But when it became clear after Stalingrad that the fight now had to be continued for the very existence of the German people, the military leaders had even less of a moral right to bring about a collapse of the front lines and the whole country by coup d'etat. In those days, large sections of the German people s believed in Hitler. Would the military leaders not have been mad responsible for everything that the German nation is feeling s heavily today as a consequence of the capitulation? Can one reconsider a coup d'etat, disloyalty to the given oath, and murder, a a legal obligation of the soldier in the midst of a war for the very life and death of the Nation? As Field Marshal Von Rundstedt said in the witness stand:

"Nothing would have been changed for the German people, but my name would have gone down in history as that of the greatest traitor."

87

27 Aug. 46

To what extent any such attempt was condemned to failure is proved by the unsuccessful attempt on Hitler's life on 20 July 1944. Even the preparation of this attempt over a number of years and the participation of men from all walks of life were not able to assure its success. How, therefore, could the 129 indicted officers have successfully carried out a coup d'etat?

Certainly, if they had been, the united association which the Prosecution would so very much like to regard them, they might perhaps also have contemplated a commonly-planned violent revolt; but since they were not a closed organization, since they were not politicians but "only" soldiers, they could do nothing on their part to bring about a change of conditions. They could only obey to the last, in spite of the fact that they knew how desperate the military situation was. The German military leaders found themselves hemmed in between their rights as men and their duties as soldiers.

As citizens of the State they might have claimed for themselves the right to refuse service to a Fuehrer and a system which, the longer the war lasted, proved to be more and more harmful. They might thus have evaded their personal responsibility, they might have--as the prosecutor puts it--"saved their skins." Perhaps they would not now be before this Tribunal. But by taking such a decision they would at the same time have let down their soldiers who trusted them and for whom they felt responsible. Therefore there remained for them as soldiers only the duty to fight. This "duty" might, in a wider sense of the word, have consisted in overthrowing the system. In war, however, this would practically have amounted to nothing less than inviting defeat. No soldier could take that upon himself. No military leader can for years demand of his soldiers that they should give their lives, and then abandon his post himself and go down in history as a traitor to his nation.

Thus there remained for the German military leaders only the duty to fight the enemy to the last. Confronted with the tragic decision between personal rights and soldierly duties, they decided in favor of their duties, and thus acted in the spirit of soldierly morale.

What other possibility would have remained open to them to keep themselves and their soldiers free of criminal acts? There was only a single possibility: circumvent criminal orders; evade them, or transform them by additional orders in such a way that the result was in keeping with the soldier's sense of justice and decency. This they did as far as possible in order to conduct the military war, which alone was their business, according to the rules of international law and of humanity. If besides this the political and ideological war was carried on by methods which have today

88

27 Aug. 46

exposed the German people to the contempt of the world, the German generals as a group had no part in this kind of war. I have now reached the end of my observations. I believe I have proved:

(1) That the 129 military leaders whom the Prosecution want to indict were in no respect an "organization" or "group," and represented even less a united will for the execution of criminal acts. These men are not a gang of criminals.

(2) That the invented collective term "General Staff and High Command," with which the Prosecution designates these officers, represents in reality a purely arbitrary combination, of holders of the most varied service posts from quite different periods and from fundamentally different branches of the Armed Forces. Chosen without any real justification and without legal necessity, it can only have the purpose of throwing deliberate slander on the institution of the General Staff, which has been taken as a model by so many nations. What a slogan, indeed, for the international press: "The German General Staff a criminal organization!"

I furthermore believe I have proved:

That the military leaders in Hitler's state did not even have an opportunity to participate in a political plan or a political conspiracy with the object of waging a war of aggression, and even less to assist in it actively. They constantly uttered warnings, and were finally themselves overcome by the political leadership.

I believe finally to have proved:

That after the outbreak of war the military leaders engaged in passive resistance against Hitler's methods which disregarded the rules of warfare and of humanity. They thereby in practice prevented the commission of crimes against the rules of war and of humanity as far as it was possible, and maintained as soldiers the spirit of Christianity.

If individual officers among the indicted generals have committed crimes, they will know how to account for themselves. The group as a whole is not guilty of the crimes which were committed. On the contrary, this circle of officers was one of the strongholds of decent, humane, and Christian conception and action. Only an observer who witnessed at close range the enormously difficult situation in which every one of these men found himself, can do justice to their attitude. All alone they had to settle the conflict of their conscience, and could not seek assistance in the distress and torment of their conscience by resorting to the members of a Parliament, to the editors of a free press, or to prominent influential men of public life, as was possible for the military leaders of the other side. It was precisely these men who were persecuted with derision and hatred. They were openly, and still more in secret branded as "reactionary generals," as "dust-covered knights of a

89

27 Aug. 46

medieval code of honor." They, not the "great Hitler," were made responsible by Party propaganda for every military setback, they were the traitors and saboteurs to whose sinister influence all misfortunes were due. Without them, Hitler would have won his war.

The abysmal hatred of the mass murderers from the circle around Himmler is persecuting them even to this very courtroom, and endeavoring by lies and distortions to drag them down disaster. The prosecutor does not realize how much he contributes, by his theory that Hitler was driven on by instigators and advisers and that everything was ultimately the generals' fault, to revive the halo around Hitler, so that Hitler may one day appear, not as the political criminal and the mass murderer of millions of people, but as the tragic hero who was pushed into the abyss by the gray figures who, surrounded him. Does the prosecutor really wish to challenge the judgment of history in such a way?

History has its own method of judgment. The summary kind of judgment demanded in this case is practically unique in the history -of the world. There is in fact only one parallel, and it is both a warning and a lesson. On 16 February 1568, a verdict rendered by the Holy Office sentenced all inhabitants of the Netherlands to die as heretics, with the exception of a few specially-named cases. The Duke of Alba, who was devoted to his royal master in blind and fanatical obedience, was appointed executioner for this mass verdict. The judgment of history on this first great manifestation of the idea of collective guilt is well known.

History will deliver its own judgment on the military leaders with whom we are concerned here, and the German generals believe that they will be able to hold their own in its verdict. Today, however, we are concerned with the verdict to be rendered by this International Military Tribunal. Let the Tribunal not neglect the fact that the knowledge which it possesses today of the entire trend of past events--both as regards their external course and their background--was something these men did not have when they made the decisions for which they are to be held responsible today.

These men do not fear for their lives-their anxiety is concerned only with justice. May it please the Tribunal of Nuremberg to render a verdict which, as I said in my opening remarks, is uninfluenced by the passions of everyday life, far removed from blind hatred and vengeance and the petty instincts of retaliation and -which, standing out pure and unfalsified in the face of eternity and of a better future of the nations, is nothing but just!